THE  STATE 

AND 

GOVERNMENT 


THE  STATE 

AND 

GOVERNMENT 

BY 

JAMES  QUAYLE  DEALEY,  PH.D. 

PROCESSOR  OF  '  SOCIAL  AND  POLITICAL  SCIENCE  IN  BROWN  UNIVERSITY; 

AUTHOR  OF  "THE  DEVELOPMENT  OF  THE  STATE,"   "GROWTH  OF        * 

STATE  CONSTITUTIONS,"  "SOCIOLOGY,  ITS  DEVELOPMENT  AND 

APPLICATIONS,"  "THE  FAMILY  IN  ITS  SOCIOLOGICAL 

ASPECTS,"  AND,  CONJOINTLY  WITH  LESTER 

V.  WARD,  "A  TEXT-BOOK  OF  SOCIOLOGY" 


D.  APPLETON  AND  COMPANY 

NEW  YORK  LONDON 

1921 


COPYRIGHT,  IQ2I,  BY 

D.  APPLETON  AND  COMPANY 


PRINTED  IN  THE  UNITED  STATES  OT  AMERICA 


PREFACE 

This  work  contains  in  generalized  form  a  study  of  the 
development  of  the  state,  its  sovereignty,  and  its  differen- 
tiated governmental  organization.  It  is  based  on  a  pre- 
vious work  of  the  author's,  The  Development  of  the 
State,  which  has  been  rewritten  completely  and  enlarged 
by  seven  chapters. 

There  are,  of  course,  many  books  that  explain  the 
governmental  systems  of  leading  states,  supplying  con- 
crete information  about  particular  countries.  This  work 
aims  rather  to  show  the  development  of  government  itself 
and  the  democratic  movement  in  government,  so  as  to 
furnish  a  general  background  for  detailed  studies  of 
national  governments.  In  pursuit  of  this  aim  the  author 
has  endeavored  to  indicate  the  socio-economic  and  intel- 
lectual factors  that  determine  variations  in  government, 
in  order  that  the  reader  or  student  may  understand  more 
clearly  the  significance  of  political  institutions. 

This  succinct  survey  of  government,  as  a  sort  of 
epitome  of  all  government,  may  perhaps  be  found 
especially  useful  as  an  introduction  to  the  study  of  politi- 
cal science  and  history  in  our  colleges  and  universities. 
To  this  end  copious  references  have  been  inserted,  includ- 
ing a  compact  bibliography.  In  so  brief  a  volume  much 
detail  has  to  be  omitted,  but  it  is  chiefly  matter  that  can 
readily  be  supplied  by  the  instructor,  who  can  also  expand 
the  text  at  pleasure  by  furnishing  additional  illustrations 
from  governmental  systems. 

V 

438710 


vi  PREFACE 

It  is  the  author's  hope  that  this  volume  may  assist 
in  making  clear  the  relation  of  the  state  and  government, 
so  as  to  aid  in  developing  that  political  intelligence  with- 
out which  no  nation  can  make  progress.  In  this  era  of 
world  war,  international  politics,  and  national  readjust- 
ments, a  generalized  view  of  political  development  may 
help  towards  a  better  comprehension  of  changing  political 
situations  and  towards  the  possibility  of  a  governmental 
policy  based  on  scientific  knowledge. 

J.  Q.  DEALEY 


CONTENTS 

PAGE 

PREFACE         .;      ..  M      :••      ™      •.«      •        v 

PART  I 

DEFINITIONS  AND  DEVELOPMENT  OF  GOVERNMENT 

CHAPTER  I 

GOVERNMENT  AND  THE  STATE 

Government  as  Leadership,  i. — Social  Government,  I. — 
The  War  Band,  2.— The  State  Supreme,  5.— Political 
Science,  6. — Subdivisions  of  Political  Science,  7  .  1 

CHAPTER  II 

THE  SOCIAL  BACKGROUND  OF  THE  STATE 

Social  Institutions,  u. — Meaning  of  Civilization,  13. — Its 
Earlier  Stages,  14. — Conditions  that  Affect  Social 
-  Development,  16. — I.  Physical  Factors,  17. — Abundant 
Food  Supplies  Essential,  17. — Expansion  through 
Commerce,  18. — Expansion  through  Manufactures,  19. 
— II.  The  Factor  of  Population,  20. — The  Standard  of 
Living,  20. — Need  of  Economic  Opportunity,  21. — 
III.  Mentality  as  a  Factor,  22 II 

CHAPTER  III 

THE  DEVELOPMENT  OF  POLITICAL  GOVERNMENT 

Four  Periods  of  Development,  24. — I.  The  Primitive 
Period,  26. — The  Early  Condition  of  Man,  26. — The 
Beginnings  of  the  State,  27.— II.  The  Patriarchal 
Period,  28.— The  Development  of  the  Tribe,  28.— 
Permanent  Elements,  30. — Agriculture,  31. — Changes 
in  Tribal  Organization,  32. — The  Village  Community, 
33.— Loose  Confederations,  34.— III.  The  Period  of 

vii 


viii  CONTENTS 

FACE 

Urban  Civilization,  35. — The  Influence  of  Commerce, 
35. — Changes  in  Political  Organization,  37. — National 
States,  38. — IV.  The  Period  of  Industrial  Civilization, 
39. — The  Problems  of  Food,  39. — Invention  of  Tools, 
40. — Utilization  of  Natural  Power,  41. — The  Struggle 
for  Supremacy,  42. — Summary,  43  ....  24 


CHAPTER  IV 

DEFINITIONS  AND  EXPLANATIONS 

Political  Organization,  46. — Sovereignty,  48. — Sovereignty 
in  International  Relations,  49. — Limitations  on  Gov- 
ernments, 50. — Public  Opinion,  52. — Development  of 
Sovereignty,  53. — Sovereignty  as  Supremacy,  54. — 
Protection  of  Life  and  Property,  55. — Importance  of 
Political  Theories,  56 46 

CHAPTER  V 

SOVEREIGN   POWERS,  TAXATION  AND  WAR 

Sovereign  Powers,  58. — The  Essential  Aspects  of  Sov- 
ereignty, 58. — The  Development  of  Sovereign  Pow- 
ers, 60. — Forms  of  Taxation,  61. — Taxation  through 
Service,  62. — Taxation  of  Property,  63. — The  Budget, 
65.— The  War  Power,  66.— -War  and  Peace,  66. — 
Service  in  Army  or  Navy,  67. — Beginnings  of 
Diplomacy,  .  70. — International  Law,  71. — Policy 
towards  the  Conquered,  72. — Dominant  Races,  73. — 
Race  Conflict,  73. — A  World  Federation,  74  .  .58 


CHAPTER  VI 

INTERNAL  PEACE,  FAMILY,  AND  CHURCH 

Internal  Peace,  77. — Social  Regulation  of  Crime,  77.— 
Outlawry,  78. — Minor  Breaches  of  the  Peace,  78. — 
The  Fine  System,  80. — Methods  of  Trial,  81. — Crimes 
Against  Property,  81. — Civil  Disputes,  82. — The  Fam- 
ily in  Its  Relation  to  the  State,  83. — The  Metronymic 
Family,  83. — The  Patronymic  Family,  84. — Types  of 
Family  Groups,  86. — The  Family  and  the  State,  87. — 
The  Modern  Family,  88.— -The  Relation  of  Church 
and  State,  89. — Totemism,  89. — Ancestor  Worship, 
90.— The  Rift  Between  Church  and  State,  91.— -Sep- 


CONTENTS  ix 

PACK 

a  ration  of  Church  and   State,  93. — Passing  of  Re- 
ligious Functions  to  the  State,  96  .        .        •      77 

CHAPTER  VII 

ECONOMIC  REGULATION 

Territory,  96. — The  Ownership  of  Land,  96. — The  Utiliza- 
tion of  Land,  97. — The  System  of  Mandataries,  98. — 
The  Individual  and  the  Land,  99. — Communal  Owner- 
ship, loo. — The  Rise  of  Personal  Ownership,  101. — 
Survivals  of  Communal  Ownership,  103. — Coloniza- 
tion, 104. — Agriculture,  106. — Food  Supplies,  106. — 
Commerce,  107. — The  Market  Place,  107. — A  Medium 
of  Exchange,  108. — The  Bank,  109. — Governmental 
Regulation,  no. — Manufacturing,  in. — The  Skilled 
Worker,  in.-— The  Industries,  112.— Labor,  113  .96 


PART  II 

ORGANIZATION  OF  GOVERNMENT  AND  DEMOCRACY 

CHAPTER  VIII 

DISTINCTION  BETWEEN  STATE  AND  GOVERNMENT 

The  Danger  of  Confusing  State  with  Government,  119. 
— I.  Popular  Sovereignty,  120. — II.  Fundamental 
Law,  121. — III.  Separation  of  Powers,  122. — IV. 
Marsiglio's  Conciliar  Theory,  123.— The  First  Writ- 
ten Constitution,  125. — Relationship  of  State  and 
Government,  125 119 

CHAPTER  IX 

THE  LEGAL  SOVEREIGN  AND  THE  CONSTITUTION 

The  Legal  Sovereign,  128. — The  Constitution  of  the  State, 
128. — The  Constitution  as  the  Expression  of  Dominant 
Interests,  129. — The  Legal  Sovereign,  130. — Location 
of  Legal  Sovereignty,  131. — Revolutionary  Origin  of 
the  Legal  Sovereign,  134. — The  Constitutional  Con- 
vention, 135.— The  Written  Constitution,  136.— The 
Importance  of  Constitutions,  136. — I.  The  Contract 
Theory,  136. — II.  The  Constitution  as  Fundamental 


CONTENTS 

PAGE 

Law,  137. — III.  The  Constitution  as  a  Check  on 
Government,  137. — Growing  Importance  of  the  Writ- 
ten Constitution,  139. — American  National  Constitu- 
tion, 139. — Constitution  of  the  Commonwealth,  140. 
— The  Amendment  of  Constitutions,  141. — Amend- 
ment of  State  Constitutions,  142. — Usual  Provisions 
of  State  Constitutions,  143. — How  a  Constitution  Is 
Made,  145. — Conflicting  Theories  as  to  the  Powers  of 
the  Constitutional  Convention,  145  ....  128 


CHAPTER  X 

THE   CLASSIFICATION   OF   GOVERNMENTS   AND 
FUNCTIONS  OF  GOVERNMENT 

Classification  of  Governments,  147. — The  Greek  Classifi- 
cation, 148. — Classification  by  the  Extent  of  Popular 
Control,  150. — Classification  by  Form,  151. — Federa- 
tive Forms,  151. — The  Federation,  153. — Contrasted 
with  the  Confederation,  154. — .Origin  of  Federations, 
155. — The  Utility  of  the  Federation,  156. — Dual  Form 
of  Federal  Government,  157. — Classification  of  Gov- 
ernmental Functions,  158. — Classification  by  Depart- 
mental Activities,  159. — Five  Classes  of  Govern- 
mental Functions,  159. — I.  The  Deliberative  Func- 
tion, 160. — II.  The  Legislative  Function,  160. — III. 
The  Executive  Function,  161. — IV.  The  Adminis- 
trative Function,  161. — V.  The  Judicial  Function, 
161. — Origin  and  Differentiation  of  These  Func- 
tions, 163 147 


CHAPTER  XI 

THE  DIVISIONS   OF   GOVERNMENT 

The  Separation  of  Powers,  164. — Montesquieu's  Theory, 
164. — Powers  of  the  Usual  Three  Departments,  166. 
— I.  The  Executive  Department,  166. — II.  The  Law- 
making  Department,  166. — III.  The  Judicial  Depart- 
ment, 167. — The  Check  and  Balance  System,  167. — 
The  Differentiation  of  Powers,  169.— I.  The  Differ- 
entiation of  the  Administrative  from  the  Executive, 
169. — II.  Differentiation  of  the  Lawmaking  Body, 
169. — III.  Differentiation  of  the  Judiciary,  170. — 
IV.  Differentiation  of  the  Electorate,  171. — Broader 
Definition  of  Government,  172. — Summary  of  Gov- 


CONTENTS  xi 

PAGE 

ernmental  Differentiation,  174.  —  The  Executive  De- 
partment, 175.  —  Limitations  on  Royal  Power,  176.  — 
Russia  as  Illustration,  179  ......  164 

CHAPTER  XII  }/ 

THE  EXECUTIVE  DEPARTMENT 

The  Two  Functions  of  the  Executive  Department,  182.  — 
I.  The  Powers  of  the  Executive,  182.  —  II.  Adminis- 
trative Powers,  182.—  The  Executive  Head,  183.—  The 
Development  of  Leadership,  183.  —  Rise  of  Monarchy, 
184.  —  Royal  Power,  185.  —  The  King  Limited  by  Con-  * 

stitution,    186.  —  Types    of    Governmental    Headship, 


187.—  The  Cabinet,  189.—  The  Autocratic  Type,  189.  /^ 

—  Japan,     190.  —  Japan's     Bureaucracy,     190.  —  Great         \J 
Britain,  192.  —  United  Stat 
trasts  in  these  Types,  195 


Britain,  192.  —  United  States  of  America,  194.  —  Con-       .j 

r»2 


CHAPTER  XIII 

ADMINISTRATIVE   ORGANIZATION 

Differentiation  of  Administration,  197.  —  I.  Differentiation 
Into  Branches  of  Administration,  197.  —  II.  Differ- 
entiation of  the  Religious  Function,  198.  —  III.  Dif- 
ferentiation of  the  Judicial  Function,  199.  —  IV.  Dif- 
ferentiation of  Lawmaking,  200.  —  V.  Differentiation 
of  the  Electorate,  201.  —  Administrative  Departments, 
201.  —  The  Civil  Service,  203.  —  Officeholders,  203.  — 
The  Right  of  Instruction,  205.  —  Administrative  Dis- 
tricts, 206.  —  Local  Autonomy  or  Home  Rule,  208.— 
Japan's  Administrative  System,  210  ....  197 

CHAPTER  XIV 

THE  JUDICIAL  DEPARTMENT 

The  Judicial   Function,  214.  —  Executive  Judicial  Power, 
214.  —  Administrative  Courts,  216.  —  French  Adminis- 
trative   Courts,    217.  —  Administrative    Law,    218.  — 
American  Administrative  Courts,  219.  —  Development 
of  the  Judicial  Department,  221.  —  Privileged  Classes, 
223.  —  Systems  of  Courts,  224.  —  -Equity  Courts,  225.1— 
Specialized  Jurisdiction,  226.  —  Administrative  Aspect* 
of   the   Judicial   Department,   227.  —  Legal   Penalties, 
228.  —  The  Four  Stages  of  Punishments,  229.  —  Torture  "~ 
and  the  Ordeal,  231.—  Moc^rn  Penal  Systems,  232     .     214 


xii  CONTENTS 

CHAPTER  XV 

THE  LAWMAKING  DEPARTMENT 

PAGE 

Rise  of  Opposition  to  Autocracy,  234. — The  English  Par- 
liament, 235. — Importance  of  a  Lawmaking  Body, 
236. — Bicameral  System,  238. — Composition  of  the 
Lawmaking  Body,  238. — The  Initiation  of  Bills,  240. 
— Legislative  Privileges,  241. — Administrative  Aspect 
of  Legislation,  243. — The  Committee  System,  244. — 
The  Veto  Power,  245. — Legislative  Powers  in  Deter- 
mining Policy. — Legislative  Determination  of  Policy 
in  the  United  States,  246. — Powers  of  the  Popular 
Assembly,  248. — Power  of  the  Lower  House,  250. — 
Functions  of  Legislative  Bodies,  251  .  .  .  234 

CHAPTER  XVI 

THE  DEVELOPMENT   OF  LAWMAKING 

Immutable  Character  of  Ancient  Law,  253. — Processes  of 
Change,  254. — I.  Change  through  Conquest,  254. — 
II.  Change  through  Interpretation,  254. — III.  Change 
through  Commentators,  255. — IV.  Change  through 
Codifications,  256. — V.  Changes  through  the  Exec- 
utive, 258. — Modern  Legislation,  259. — The  Making 
of  New  Law,  260. — Scientific  Legislation,  261. — Basis 
of  Scientific  Legislation,  262. — Illustrations  of 
Scientific  Legislation,  264. — 'Legality  of  Legisla- 
tions, 265  ....  .  .253 

CHAPTER  XVII 

CLASSIFICATION   OF  LAW 

The  Meaning  of  Law,  267. — Social  Customs,  268. — When 
Social  Custom  Becomes  Law,  268. — Friction  in  Law, 
270. — Ignorance  of  the  Law,  271. — Older  Forms  of 
Law:  Treason,  272. — The  Law  of  the  Land,  273. — 
Roman  Law,  274. — Equity  Law,  275. — Criminal  Law, 
275. — Civil  Law,  276. — Social  Customs  that  Became 
Law,  277. — The  Law  Merchant,  277. — Maritime  Law, 
277. — Canon  Law,  277. — International  Law,  277. — . 
Natural  Law,  278. — The  Decree  or  Ordinance,  279. — 
Legislative  Ordinances,  280. — The  Statute  and  the 
Constitution,  281. — Public  and  Private  Law,  283. — 
The  Code  System,  284 267 


CONTENTS  xiii 


CHAPTER  XVIII 

THE  ELECTORATE 

PACE 

Its  Early  Development,  286.—  Definition,  287.  —  The  Suf- 
frage in  England,  288.—  Modern  Reforms,  289.—  In 
the  United  States  and  France,  290.—  Woman  Suffrage, 
290.  —  The  Electorate  as  a  Department  of  Govern- 
ment, 291.  —  Restrictions  on  Electorates,  292.  —  Meth- 
ods of  Voting,  293.  —  The  Ballot,  294.—  Democracy 
through  the  Electorate,  295.  —  Policy  through  the 
Executive,  295.  —  Policy  through  the  Lawmaking 
Body,  296.  —  Policy  through  the  Electorate,  296.  —  The 
Use  of  the  Initiative  and  the  Referendum  in  Switzer- 
land, 298.  —  The  Initiative  and  the  Referendum  in 
the  United  States,  300  ......  286 

CHAPTER  XIX 

CITIZENSHIP,  RIGHTS  AND  OBLIGATIONS 

Citizenship,  303.  —  Citizens  and  Aliens,  303.—  Native 
and  Naturalized  Citizens,  304.—  Inequality  in  Citizen- 
ship, 304.  —  The  Notion  of  Right,  306.  —  Ethical  and 
Legal  Rights,  306.—  Civil  Rights,  307.—  The  Securing 
of  Civil  Rights,  308.—  The  Fundamental  Right,  309. 

—  Civil  Rights,  310.—  Broadening  of  Civil  Rights,  311. 

—  Famous  Guaranties  of  Rights,  312.  —  Regulation  of 
Rights,    313.—  Basis   of    Political    Rights,    314.—  The 
Winning  of  Political  Rights,  315.—  How  Rights  Are 
Maintained,    315.  —  The    Obligations    df    Citizenship, 
316.  —  Allegiance,  316.  —  Service,  317.  —  Taxation,  318. 

—  Control  over  Taxation,  319      .....    303 

CHAPTER  XX 

POLITICAL  PARTIES 

Political  Parties  as  Agencies  of  Democracy,  321.  —  De- 
velopment of  Parties,  322.  —  "Bossism,"  323.  —  The 
Rise  of  Political  Parties,  324.—  The  British  Party 
System,  325.—  The  French  Party  System,  327.—  The 
American  Party  System,  329.  —  The  Three  Contrast- 
ing Types,  331.  —  Regulation  of  Parties,  332.  —  Pro- 
portional Representation,  333.  —  I.  The  Hare  System, 
334.—  -II.  The  Belgian  System,  335.—  Party  Issues, 
336  ...........  321 


xiv  CONTENTS 

CHAPTER  XXI 

POLICIES  AND  ACHIEVEMENTS  OF  GOVERNMENT 

PAGE 

Polity  and  Policy,  338. — Domestic  and  Foreign  Policies, 
339. — Policies  Should  Be  Understood  by  the  People. 
340. — National  Preparedness,  341. — Growth  of  Policy, 
342. — American  Policy,  343. — Basis  for  Policy,  344. 
—The  Factors  of  Population  and  Land,  345. — Political 
Contributions  of  Nations,  346. — In  the  Classic  Period, 
346. — Modern  Contributions,  347. — New  Zealand, 
349. — The  Domestic  Policy  of  New  Zealand,  350  .  338 

CHAPTER  XXII 

GROWTH   OF  DEMOCRACY 

The  People,  354.— The  Ideal  of  Democracy,  355.— The 
Ideal  of  Democracy,  355. — Three  Historic  Forms  of 
Democracy,  355. — -I.  Tribal  Democracy,  356. — II.  Con- 
servative Democracy,  357. — III.  Radical  Democracy, 
358. — Contrasts  Between  Conservative  and  Radical 
Types  of  Democracy,  360. — Underlying  Principles, 
361. — Democracy  Based  on  Intelligence,  362. — Inter- 
national Aspects  of  Democracy,  362. — Democracy  in 
Domestic  Policy,  364. — Social  Aspects  of  Democracy, 
364. — The  Trend  Towards  Democracy,  365  .  .  354 

BIBLIOGRAPHY       .....      :.,      .       .       ..      .       .     369 

INDEX      .       .       .       •>      •?      •.      •<.      »      -••      •.       .       .39* 


PART  I 
DEFINITIONS  AND  DEVELOPMENT 

OF 

GOVERNMENT 


THE    STATE  AND   GOVERNMENT 

CHAPTER  I 

GOVERNMENT  AND  THE  STATE 

Government  as  Leadership. — The  word  government 
is  Greek  in  origin  and  has  the  meaning  of  steering  or  guid- 
ing. In  this  natural  sense  government  may  be  predicated 
of  many  animal  groups,  which  have  their  leaders  who 
guide  and  direct  the  activities  of  the  group  members. 
Among  the  ape  groups,  our  nearest  kin  in  the  animal 
world,  there  is  a  leadership  based  apparently  on  age  and 
strength.  Doubtless  over  primitive  human  groups  in  the 
countless  centuries  of  the  pre-neolithic  period,  there  were 
leaders  who  guided  their  bands  because  of  their  skill  and 
strength,  or  the  experience  they  had  acquired  through  age. 
To  some  it  may  resemble  government  by  force,  but  it  is 
force  acquiesced  in  because  of  its  utility  in  group  safety. 
Government  as  guidance  and  leadership  is  world-wide  and 
is  common  in  every  field  of  human  activity,  as  illustrated 
in  the  government  of  family  and  church,  in  business  and 
education,  and  in  the  innumerable  associations  of  social 
life. 

Social  Government. — Every  kind  of  government  also 
has  its  law,  its  rules,  its  commands,  and  these  are  enforced 
by  some  well-understood  authority  such  as  parent,  teacher, 
priest,  or  employer.  Even  the  rules  of  etiquette  are  en- 


:  THE  ST AT&  AND,  GOVERNMENT 


forced  tHrb'ug'h  the  pressure  'of  public  opinion  and  the 
dread  of  social  ostracism  from  social  leaders  as  a  punish- 
ment for  offenses  against  the  code.  It  is  perfectly  cor- 
rect, therefore,  to  assert  that  in  primitive  life  there  was 
government  with  its  rules,  its  sanctions,  and  its  enforcing 
authority.  If  the  numerous  population-groups  of  the 
world  were  living  peacefully  one  with  the  other,  knowing 
nothing  of  such  notions  as  state,  sovereignty,  or  politics, 
there  would  still  be  government,  law,  social  control,  and 
enforcement,  but  human  beings  would  be  thought  of  as 
living  in  society  under  social  relations,  and  group  life 
would  be  characterized  as  anarchic  or  anarchistic.  These 
words  in  anarchistic  theory  properly  imply  the  absence  of 
political,  militaristic,  compulsory  authority  and  always 
assume  a  peaceful  social  life.  Each  group,  institution,  or 
industry  would  be  its  own  lawmaker,  executive,  and  judge, 
under  the  guiding  pressure  of  public  opinion,  quite  after 
the  system  proposed  by  the  Syndicalists  of  France  or  the 
advocates  of  sovietism  in  Russia.1  These  modern  pana- 
ceas, therefore,  are  not  new  but  are  revised  versions  of 
primitive  forms  of  government,  lacking  the  state  and  its 
sovereignty. 

The  War  Band. — The  state  2  proper  traces  its  ancestry 
(  back  to  the  war  band  of  primitive  civilization.  It  presup- 
poses not  a  condition  of  primitive  peace,  a  sort  of  golden 
age,  but  a  situation  in  which  war  is  ever  imminent  and 
against  which  precaution  must  be  taken.  The  war  band 
presumably  had  its  beginnings  in  the  hunting  and  fishing 

*A  high-school  or  college  class  organization  illustrates  this  form 
of  government.  There  is  a  body  of  officers,  having  the  usual  gov- 
ernmental functions,  and  the  class  members  with  powers  of  law- 
making  and  taxation,  but  there  is  no  method,  for  example,  whereby 
members  can  be  compelled  to  pay  taxes  by  threat  of  forced  sale  of 
property. 

aA  word  taken  from  the  Latin  phrase,  "Status  rei  publicae." 


GOVERNMENT  AND  THE  STATE  3 

stage  of  civilization,  when  population  began  to  press  heav- 
ily on  the  supplies  of  natural  foods  and  the  competition 
for  favored  hunting  grounds  had  developed.  Attack  and 
defense  were  doubtless  sporadic  at  first  and  the  war  or- 
ganization must  have  been  of  the  spontaneous  sort.  But 
wherever  competition  became  keen,  skill  in  warring  be- 
came a  necessity  for  survival,  so  that  systematic  prepara- 
tion for  war  became  an  essential  in  time  of  peace.3 

The  war  band's  reason  for  existence  was  the  group 
need  for  protection — protection  of  life,  protection  of 
hunting  grounds,  and  later  also  protection  of  property. 
This  protection  was  against  external  foes  only,  domestic 
peace  was  preserved  after  customary  methods  under  the 
supervision  of  the  group  elders.  Group  protection  against 
external  aggression  was  so  essential  that  the  war  band 
naturally  had  a  free  hand  given  to  it  in  the  formulation 
of  methods  and  in  the  requisitions  it  might  impose.  Re- 
ligion gave  it  support,  the  fighting  strength  of  the  group 
was  at  its  command,  economic  agencies  might  be  subor- 
dinated in  case  of  necessity,  and  even  ancient  custom  was 
not  allowed  to  interfere  with  the  exigencies  of  the  situa- 
tion. War,  indeed,  has  always  proved  to  be  a  powerful 
agency  in  smashing  obsolescent  customs  which  repress 
social  innovations.  Under  the  steady  pressure  of  war 
emergencies  originated  of  necessity  a  theory  of  the  sov- 
ereignty of  the  state.  The  war  band  in  comparison  with 
other  organizations  and  institutions,  the  economic  or  hunt- 
ing band,  for  example,  or  religion  and  family,  came  to  be 
considered  as  supreme.  In  the  piping  times  of  peace,  to 
be  sure,  its  claims  to  dominance  might  be  ignored  by  these 
rival  organizations,  any  one  of  which  might  assert  its  pre- 

a  The  war  dance  of  savage  peoples  is  a  primitive  form  of  military 
training. 


4  THE  STATE  AND  GOVERNMENT 

eminence,  but  when  war  or  the  expectation  of  war  became 
habitual  so  that  the  "doors  of  the  temple  of  Janus"  were 
seldom  closed,  the  war  band  became  preeminent  and  all 
interests  perforce  were  subordinated  to  the  supreme  inter- 
est of  group  safety.  Even  in  these  modern  days  admit- 
tedly the  prime  duty  of  the  state  is  war,  and  preparations 
for  it  by  common  consent  are  made  in  times  of  peace  as  a 
matter  of  duty.  The  state,  to  be  sure,  has  many  other 
functions,  but  the  supreme  function  is  the  necessity  of 
safeguarding  and  furthering  public  interests  through  war, 
whenever  diplomacy  fails  to  ward  off  threatened  danger 
from  rival  states. 

The  world  is  still  on  a  war  basis  and  national  rivalries 
and  struggles  for  larger  "places  in  the  sun"  seem  to  imply 
that  wars  will  be  inevitable  for  many  generations  yet.  In- 
ternational agreements  and  arbitration  may  do  much  to 
ward  off  too  frequent  wars,  but  civilization  is  too  imma- 
ture as  yet  to  be  able  to  harmonize  human  differences  in 
an  amicable  fashion. 

There  is  another  important  aspect  of  the  primitive  war 
band  that  necessitates  explanation.  Naturally  every  war 
involves  an  attack  and  a  defense  and  the  usual  outcome  is 
victory  for  one  and  defeat  for  the  other.  Defeat  in  an- 
cient times  meant  extermination  of  population  and  the 
seizure  of  the  possessions  of  the  conquered.  In  later  cen- 
turies a  partial  slaughter  of  the  vanquished  was  accom- 
panied by  the  enslavement  of  the  survivors  or  the  com- 
pulsory payment  by  them  of  exacted  tribute.  This  added 
another  function  to  the  duties  of  the  war  organization. 
The  victors  as  overlords,  or  masters,  must  keep  submis- 
sive the  mass  of  subjugated  population  under  their  au- 
thority. In  other  words,  it  must  maintain  domestic  peace 
by  suppressing  riots  and  insurrections,  and  by  compelling 


GOVERNMENT  AND  THE  STATE  5 

the  defeated  population  to  labor,  or  to  pay  tribute  accord- 
ing to  dictated  terms,  and  to  obey  the  commands  placed 
upon  them  by  the  ruling  class. 

The  State  Supreme. — In  the  light  of  these  two  ex- 
planations the  state  stands  forth  as  fundamentally  a  war 
band  charged  with  the  duty  (i)  of  preserving  group 
safety  and  (2)  of  guaranteeing  domestic  peace  by  using 
threat  and  force  so  as  to  render  submissive  recalcitrant 
subjects.  The  state,  therefore,  differs  from  other  social 
organizations  in  that  it  governs,  not  merely  its  own  in- 
stitution, the  armed  forces,  but  more  than  that  it  is  a 
supergovernment  over  all  other  governments  within  the 
national  group,  whether  economic,  familial,  or  religious, 
and  sees  to  it  that  the  population  as  a  whole  is  subject 
and  obedient  to  the  will  and  command  of  the  rulers  or 
ruling  class. 

On  the  basis  of  this  explanation  it  now  becomes  pos- 
sible to  see  the  historic  importance  of  the  state,  to  recog- 
nize it  as  the  dominant  social  institution  and  from  the 
standpoint  of  group  safety  as  the  most  important  of  all 
human  organizations.  It  has  been  and  is  a  mighty  factor 
in  civilization.  Though  in  history  it  has  frequently  been 
the  instrument  of  tyranny  and  despotism,  and  has  often 
hindered  rather  than  helped  humanity,  yet  it  admittedly 
stands  for  the  preservation  of  the  highest  in  human  de- 
velopment. 

Submission  to  its  orders,  as  Hobbes  4  plainly  showed, 
is  the  price  men  pay  for  liberty.  For  at  least  twenty-five 
hundred  years  the  study  of  this  institution  has  occupied 
the  minds  of  the  wisest  philosophers  and  most  thoughtful 
statesmen,  and  ancient  writings  even  yet  supply  the  basis 

4  In  his  Leviathan. 


6  THE  STATE  AND  GOVERNMENT 

for  modern  political  studies.5  We  are,  at  the  present  time, 
at  the  close  of  the  greatest  war  in  history,  in  an  era  of 
numerous  important  developments  in  political  life;  ex- 
pansion, colonization,  federation,  democracy,  and  strug- 
gles for  the  realization  of  statehood  on  the  part  of  sup- 
pressed nationalities  are  so  powerfully  affecting  the  politi- 
cal conditions  of  the  world  that  the  study  of  the  science  of 
the  state  has  become  especially  important.  The  United 
States  of  America,  which,  as  a  leading  state,  should  have 
an  important  part  in  the  discussion  and  formulation  of 
world  policies  has  an  especial  interest  in  world  politics  at 
present  and  should  popularize  the  teachings  of  politics  as 
never  before.  Naturally  so  much  attention  has  been  given 
to  the  state  in  late  centuries  that  teachings  in  respect  to  it 
and  its  government  have  been  systematized  into  a  science, 
the  study  of  the  state,  or  political  science. 

Political  Science. — Political  science  may  properly  be 
considered  a  branch  of  the  larger  study  known  as  social 
science,  or  sociology.  Social  science  devotes  itself  to  the 
study  of  associated  man,  either  by  seeking  to  ascertain 
the  principles  and  laws  underlying  human  activity  or  by 
concrete  studies  of  various  forms  of  social  life.  The  phe- 
nomena of  social  life  are  closely  related  and  interdepen- 
dent, but,  for  convenience,  they  are  regularly  classified 
into  groups,  and  each  class  or  group  of  phenomena  made 
the  subject  of  special  study.  In  this  way  are  developed 
such  social  studies  as  economics,  political  science,  ethics, 
comparative  religion,  education,  and  history.  Political 
science  may  be  defined  as  the  science  concerned  with  the 
study  of  the  state  and  of  the  conditions  essential  to  its 
existence  and  development.  In  other  words,  the  fields  of 

"For  example,  Aristotle's  Politics  in  the  West  and   Confucian 
teachings  in  China. 


GOVERNMENT  AND  THE  STATE  7 

political  science  should  include  a  study  of  the  origin  of 
the  state,  its  nature,  its  numerous  forms  of  organization, 
its  aims,  powers,  methods  of  activity,  and  the  conditions 
that  aid  or  retard  its  development. 

So  important  is  this  study  that  every  member  in  a 
state,  and  surely  every  citizen  in  a  democracy,  should 
strive  to  become  familiar  in  a  general  way  with  the  be- 
ginnings and  the  development  or  history  of  so  important 
an  institution,  having  under  its  control,  as  it  does,  the 
lives  and  property  of  citizens  and  the  safeguarding  of 
national  destiny.  The  great  empires  of  Russia  and  Ger- 
many, so  powerful  in  1914,  so  humbled  in  1920,  show 
clearly  how  necessary  it  is  that  states  in  making  their 
decisions  be  guided  by  a  broad  political  intelligence  and 
by  an  insight  into  world  situations. 

A  really  wise  statesman  should  be  more  than  a  skilled 
politician  or  a  provincial  nationalist.  As  Aristotle  says,6 
he  should  be  acquainted  with  what  is  best  in  theory  as 
well  as  with  what  is  best  under  given  conditions.  He 
should  know  the  history,  development,  and  purpose  of 
the  state,  and  the  best  theoretical  and  the  best  practicable 
forms  of  government.  He  should  also  be  able,  because 
of  his  large  knowledge  of  governmental  agencies  in 
different  parts  of  the  world,  to  suggest  remedies  for  de- 
fects in  existing  governmental  systems. 

Subdivisions  of  Political  Science. — The  subdivisions 
of  political  science  are  numerous  and  the  boundaries  of 
each  ill  defined.  There  are  in  consequence  many  possible 
classifications,  each  determined  by  the  standpoint  of  the 
particular  writer.7  The  classification  outlined  in  the  fol- 

e  Politics,  Book  IV,  Sec.  I. 

'As  illustrations  of  classifications,  see  Willoughby,  Nature  of  the 
State,  pp.  4-5,  and  Pollock,  Introduction  to  the  History  of  the 
Science  of  Politics,  pp.  94-95. 


8  THE  STATE  AND  GOVERNMENT 

lowing  paragraphs  includes  eight  of  the  more  familiar 
aspects  of  the  science. 

(i)  If  the  state  be  viewed  abstractly,  we  have  the 
branch  known  as  political  philosophy  or  theory,  devoting 
itself  to  reasonable  explanations  of  the  principles  under- 
lying political  life  and  development.  Such  explanations 
obviously  should  take  into  account  the  kindred  teachings 
of  mental  and  social  philosophies,  which  naturally  con- 
sider political  philosophizing  in  connection  with  their 
broader  studies.  (2)  As  in  the  case  of  other  philosophies 
there  may  also  be  a  history  of  political  theories*  so  as 
to  give  one  an  historic  background  for  modern  theories. 
This  branch  is  rightly  receiving  increasing  attention  at 
the  present  time.  (3)  Again  states  have  dealings  and 
relationships  one  with  another  and  have  developed  a  code 
of  international  law  and  the  art  of  diplomacy,  both  of 
which  branches  are  of  extreme  importance  in  these  days 
of  world  problems  and  complex  interests.  The  indica- 
tions are  that  such  studies  will  be  vigorously  emphasized 
throughout  this  century,  since  states  will  need  increas- 
ingly intelligent  guidance  during  the  international  tur- 
moils of  the  readjustment  period  on  which  the  world  is 
entering. 

(4)  A  fourth  branch  of  political  science  devotes  itself 
to  political  government,  studying  its  development,  the 
conditions  that  aid  or  retard  national  prosperity,  and  the 
numerous  forms  of  governmental  organization  and  ad- 
ministration throughout  the  world.  A  study  of  this  sort 
may  be  made  general  and  comparative,  or  may  restrict 
itself  to  the  particular  type  employed  by  one's  own  gov- 
ernment. The  broader  study  is  preferable  so  as  to  avoid 

"Dunning's  three-volume  work  on  Political  Theories  is  an  ex- 
cellent study  of  this  sort. 


GOVERNMENT  AND  THE  STATE  9 

provincialism  and  the  development  of  beliefs  in  the  per- 
fection of  one's  own  form  of  government.  (5)  Again, 
attention  may  be  given  to  the  functions  or  activities  of 
government,  the  theory  underlying  these  explained9 
and  the  practices  of  typical  governments  worked  out 
historically  or  comparatively.  (6)  A  more  highly 
specialized  branch  of  political  science  is  the  study  of 
jurisprudence  or  law  in  all  of  its  branches  (including 
international  law).  This  has  a  close  relation  to  ethics 
and  the  study  of  human  customs  (mores),  since  law  is 
largely  based  on  customs  (the  common  law)  and  on  sup- 
posed principles  of  right  and  justice  (equity). 

(7)  There  is  also  the  study  of  the  art  of  politics,  that 
is,  of  the  approved  and  honorable  methods  of  conducting 
the  affairs  of  government  so  as  to  secure  national  safety 
and  general  welfare.  The  word  politics  is  frequently 
used  also  in  a  narrower  sense,  referring  to  the  conduct 
of  contests  of  political  parties  for  office,  or  in  the  sense 
of  dishonest  methods  aiming  to  secure  political  success 
through  trickery  or  bribery.  (8)  Finally,  there  may  be 
a  study  of  policy,  in  which  one  studies  the  principles 
underlying  governmental  action  with  reference  to  some 
well  defined  aim  or  plan.  A  national  policy  may  have 
in  mind  a  broad  principle  of  permanent  importance,  such 
as  Great  Britain's  policy  of  the  control  of  the  seas,  or 
the  policy  of  isolation  from  European  affairs,  empha- 
sized so  strongly  by  the  United  States  of  America  down 
to  1916;  or,  by  contrast,  policy  may  emphasize  a  nar- 
rower principle,  applicable  to  a  particular  nation  or 
condition,  such  as  the  American  policy  formulated  by 
John  Hay  of  the  "open  door"  as  applying  to  China. 
Each  of  these  general  topics  is  itself  susceptible  of 

*  Whether  individualistic  or  socialistic,  for  example. 


io  THE  STATE  AND  GOVERNMENT 

numerous  subdivisions,  but  a  complete  and  exhaustive 
classification  falls  more  properly  under  political  theory, 
and  is  not  demanded  by  this  study.  Enough  has  been 
said,  however,  to  call  attention  to  the  scope  and  impor- 
tance of  political  science  and  to  indicate,  briefly,  its 
general  divisions. 


CHAPTER  II 

THE  SOCIAL  BACKGROUND  OF  THE  STATE1 

Primitive  human  beings,  as  they  slowly  emerged  from 
the  harsh  conditions  of  an  animal  struggle  for  existence, 
were  banded  together  into  natural  groups,  or  hordes. 
These,  through  the  friction  of  mind  on  mind  and  through 
cooperative  action,  enabled  their  members  to  attain 
greater  mental  ability  and  the  power  to  satisfy  their 
slowly  increasing  needs.  One  may  safely  assume  that 
these  natural  human  groupings  were  merely  develop- 
ments of  animal  aggregations  and  were  based  funda- 
mentally on  the  need  for  foods,  for  safety  against 
enemies,  and  for  the  propagation  of  the  race.  The  per- 
manent activities  arising  from  these  needs  in  due  time 
evolved  into  the  great  primary  institutions  of  human 
society — the  economic,  the  political,  and  the  familial. 

Social  Institutions. — Through  the  group  life  of 
primitive  human  beings  and  the  consequent  necessity 
for  the  expression  of  their  inchoate  thoughts,  lan- 
guage developed  and  through  its  aid  progress  became 
possible,  since  a  knowledge  of  beliefs,  customs,  and 
experiences  could  be  transmitted  from  one  generation 
to  another — the  beginnings  of  formal  education. 
Through  language  also  they  could  discuss  one  with 
the  other  their  dread  of  the  uncomprehended  mys- 

1  In  the  Bibliography,  Section  I,  will  be  found  references  to  some 
writers  in  sociology. 


12  THE  STATE  AND  GOVERNMENT 

teries  and  dangers  by  which  they  were  surrounded, 
such  as  the  dream,  the  storm,  and  the  lightning  flash, 
and  thus  they  reached  conclusions  as  to  the  existence 
of  an  environing  world  of  anthropomorphic  spirits, 
or  ghosts,  whose  good  will  must  be  secured  or  against 
whose  malevolence  safeguards  must  be  devised. 

Through  the  daily  experiences  of  countless  generations 
they  also  learned  the  best  methods  for  securing  group 
safety,  and  reached  conclusions  as  to  what  customs 
should  meet  with  social  approval,  and  what  actions  were 
inimical  to  group  welfare.  These  "folkways"  2  in  due 
time  became  the  mores  of  social  groups,  differentiating 
slowly  into  ethical  ideals  of  justice  and  right  and  into 
the  commandments  for  average  morals  and  the  custom 
law  of  early  government,  the  source  and  parent  of  the 
many  aspects  of  law  covered  by  the  modern  science  of 
jurisprudence. 

During  the  long  course  of  the  social  development 
briefly  outlined  above,  aided  by  the  rise  of  social  institu- 
tions, human  beings  became  adjusted  to  cooperative 
activities  one  with  another,  and  out  of  these  associations 
arose  innumerable  social  relationships  each  aiding  to 
cement  more  closely  human  intercourse,  thereby  strength- 
ening social  ties  and  a  recognition  of  common  interests. 
Through  such  associations  and  institutions  are  conserved 
the  contributions  of  bygone  ages  to  civilization  without 
a  knowledge  of  which  social  life  would  lack  continuity 
and  stability.  Such  knowledge,  likewise,  makes  possible 
new  attainments  on  the  basis  of  the  known,  so  that  each 
generation  has  for  its  task  the  duty  of  comprehending 
the  achievements  of  the  past  and  of  adding  its  own  incre- 
ment to  human  knowledge. 
J  See  Wm.  G.  Sumne'r,  Folkways. 


SOCIAL  BACKGROUND  OF  THE  STATE  13 

Obviously  in  a  socialized  education  the  members  of 
society  should  become  familiar  with  the  development  and 
importance  of  each  of  our  great  social  institutions  and 
should  recognize  the  unity  of  social  life.  Every  impor- 
tant modification  in  it  affects  all  aspects  of  that  life,  its 
varied  experiences  are  part  of  a  common  experience,  and 
the  same  conditions  and  causes  affect  alike  in  varying 
degree  all  social  institutions.  In  this  century,  therefore, 
when  fundamental  changes  are  taking  place  in  social  and 
national  organizations,  a  knowledge  of  the  development 
of  civilization  as  a  whole  becomes  important.  This 
study  is  one  of  the  branches  of  sociology,  and  is  an 
attractive  department  of  modern  knowledge.  In  order, 
therefore,  to  see  the  relative  place  and  importance  of  the 
state  in  social  life,  it  may  be  well  to  indicate  briefly  the 
broad  periods  of  civilization  through  which  society  has 
passed. 

Meaning  of  Civilization. — Civilization  has  been  de- 
fined in  many  different  ways,  but  practically  all  defini- 
tions are  based  on  one  or  more  of  three  points  of  view : 
(i)  that  man  is  determined  by  his  heredity  and  by  his 
physical  and  social  environment;  (2)  that  in  the  struggle 
for  survival,  through  variation  and  mutation  he  has 
attained  a  mental  superiority  over  other  animals;  and 
(3)  that  this  mentality,  seen  at  its  best  in  reasoning, 
generalizing,  and  in  creative  imagination,  has  been 
applied  to  the  comprehension  and  utilization  of  the 
materials  and  forces  of  nature  about  him  and  to  creative 
cultural  achievements  such  as  those  in  philosophy  and 
art.  A  highly  civilized  race,  therefore,  should  have  a 
great  measure  of  control  over  natural  conditions,  high 
mentality,  artistic  idealism,  and  philosophic  insight.  A 

race  low  in  civilization  would  on  the  other  hand  be  not 

- 


14  THE  STATE  AND  GOVERNMENT 

far  removed  in  attainment  and  mentality  from  the  higher 
forms  of  animal  life. 

Its  Earlier  Stages. — In  tracing  the  development  of 
civilization  it  is  usual  to  divide  it  into  stages,  each 
characterized  by  some  particular  social  attainment,  either 
material  or  intellectual.  Attention  may,  for  instance,  be 
ft  directed  to  the  substance  used  in  the  making  of  tools. 
The  earliest  human  beings  who  became  "tool-using 
animals"  presumably  used  sticks  and  roots  or  branches 
of  trees  as  primitive  hammers  and  weapons.3  At  a  later 
period  pieces  of  heavy  stone  were  fastened  to  wood 
either  by  thongs  or  by  insertion.  Still  later  these  stones 
were  polished  so  as  to  give  a  better  cutting  edge  and  a 
more  ornamental  appearance.  Then  came  the  age  of 
bronze  or  copper,  in  which  were  used  soft  metals  that 
could  be  beaten  into  shape  while  in  their  natural  state. 
In  the  last  stages  of  early  civilization,  when  the  use  of 
fire  was  understood,  iron  came  into  use  through  smelting. 
This  was  followed  in  modern  times  by  the  Bessemer 
process  for  the  production  of  steel  and  civilization  was 
then  ready  for  the  massive  machinery  of  the  twentieth 
century,  whose  introduction  depended  also  on  scientific 
knowledge  as  to  the  utilization  of  the  powers  of  steam 
and  electricity. 

Other  writers  prefer  to  trace  civilization  by  noting  the 
chief  sources  of  food  supplies  for  human  beings.  At 
first  natural  foods  which  could  be  obtained  by  man  with- 
out tools  or  weapons  were  consumed.  Then  came,  in 
addition,  food  supplies  from  hunting  and  fishing.  Still 
later,  through  the  domestication  of  animals,  came  perma- 
nent supplies  of  flesh  foods,  and  then  agriculture  made 

*An  excellent  account  of  primitive  man  may  be  had  from  H.  F. 
Osborn,  Men  of  the  Old  Stone  Age, 


SOCIAL  BACKGROUND  OF  THE  STATE  15 

its  important  contribution  toward  the  sustentation  of  the 
human  race.  Modern  science,  of  course,  through  its 
knowledge  of  chemistry  and  plant  and  animal  life,  has 
vastly  enlarged  the  quantity  of  foods  and  improved  their 
quality.  Since  food-getting  must  always  be  the  principal 
vocation  of  mankind  one  may  associate  with  it  the  chief 
forms  of  occupation,  such  as  the  wild  and  precarious  life 
of  the  hunter,  the  care  of  flocks  and  herds,  the  pursuit 
of  agriculture,  and  finally  the  occupations  involved  in  the 
trades,  in  commerce,  manufacturing,  and  professional 
pursuits.  The  control  or  ownership  of  land,  also,  which 
is  fundamental  for  food  purposes,  suggests  a  threefold 
classification;  namely,  (i)  land  in  primitive  times  when 
the  notion  of  the  ownership  of  land  and  other  forms  of 
property  was  unknown;  (2)  that  period  in  which  land 
and  other  property4  were  considered  as  held  or  owned 
by  the  community  as  a  whole;  and  (3)  that  in  which  land 
and  other  property  are  for  the  most  part  considered  to  be 
the  personal  possessions  of  individuals. 

Still  other  writers  prefer  to  trace  civilization  through 
the  varying  forms  of  the  family  and  indicate  a  threefold 
development:  (i)  a  metronymic  stage,  characterized 
fundamentally  by  kinship  traced  through  the  mother,  and 
the  absence  of  permanency  in  family  life;  (2)  a  patro- 
nymic, or  patriarchal,  stage  in  which  kinship  is  traced 
through  the  male,  and  the  power  of  the  paternal  head 
of  the  family  tends  to  become  absolute;  (3)  the  modern 
stage  in  which  kinship  is  traced  through  both  parents 
and  emphasis  is  placed  on  a  permanent  marriage  rela- 
tionship between  one  man  and  one  woman. 

Other  writers  would  trace  civilization  by  a  study  of 

*  Except  such  personal  possessions  as  weapons,  tools,  ornaments, 
and  clothing. 


16  THE  STATE  AND  GOVERNMENT 

</  the  development  of  religion  through  its  historic  stages, 
such  as  animism,  ancestor  and  nature  worship,  polythe- 
ism, monotheism,  and  pantheism.  Others  may  trace  it 
in  the  several  stages  of  morality,  starting  from  primitive 
V  notions  of  utility  and  its  opposite,  as  shown  in  the  cus- 
toms of  savages  who  stress  a  moral  code  made  up  mainly 
of  tabus,  or  prohibitions,  to  later  stages  characterized  by 
the  growing  freedom  of  individuals  from  excessive  social 
regulation  and  control.  Or  one  may,  with  Herbert 
Spencer,  think  of  early  civilization  as  dominated  by  the 
warrior  and  the  priest  and  gradually  passing  from  a 
militaristic  towards  an  industrial  stage  emphasizing 
human  industry  and  world  peace. 

It  is  hardly  necessary  to  enumerate  other  explanations 
of  development  set  forth  by  sociological  writers.  The 
very  fact  that  the  progress  of  civilization  can  be  indi- 
cated under  so  many  aspects  shows  that  these  are  but 
specialized  phases  of  one  great  movement  of  a  unified 
social  life,  manifesting  itself  under  many  different  forms, 
but  all  alike  teaching  that  mankind  is  rising  from  primi- 
tive savagery  to  higher  and  more  ethical,  more  intellec- 
tual stages  of  development.  Even  the  most  advanced 
peoples  of  modern  centuries  have  not  yet  attained  the 
highest  possible  development.  The  best  of  them  are  low 
and  savage  when  compared  with  the  ideals  of  social  per- 
fection taught  by  the  noblest  representatives  of  humanity 
in  ages  past  and  present.  Further  development  is  still 
possible,  and  every  wise  utilization  of  the  materials  and 
forces  of  nature  and  every  upward  step  in  intellectual 
and  artistic  attainment  will  aid  in  the  furtherance  of 
moral  and  social  progress. 

Conditions  That  Affect  Social  Development. — 
From  the  foregoing  survey  it  may  be  seen  that  physical 


SOCIAL  BACKGROUND  OF  THE  STATE  17 

and  psychical  conditions  largely  affect  the  development  of 
social  institutions,  including  that  of  government.  So 
important  are  these  influences  that  for  the  student  of 
politics  further  explanation  becomes  necessary.  One 
might  note,  first,  the  influence  exerted  on  political  develop- 
ment by  the  climate,  by  the  fertility  and  mineral  wealth 
of  the  soil,  and  by  the  contour  and  configuration  of  the 
land  with  its  seacoasts,  harbors,  rivers,  and  lakes,  so 
necessary  for  the  promotion  of  domestic  and  foreign 
commerce.  Consideration  should  then  be  given  to  the 
population,  noting  its  numbers  and  its  virility  and  physi- 
cal stamina.  In  the  third  place  should  be  studied  the 
qualities  of  the  mind,  such  as  keenness  of  insight  and  the 
powers  of  mental  perseverance  and  adaptability.  A 
flexible  type  of  mind,  able  to  balance  the  old  and  the  new, 
and  to  decide  wisely  under  changing  conditions,  is  a  fac- 
tor of  prime  importance  in  political  development. 

The  chief  points  under  these  three  topics  may  now 
briefly  be  indicated. 

I.  Physical  Factors. — Abundant  Food  Supplies  Es- 
sential.— Communal  life,  which  is  essential  for  political 
growth,  develops  only  when  abundant  food  supplies 
attract  masses  of  population.  Communities  therefore 
first  developed  in  fertile  river  valleys,  on  well  watered 
plains  with  warm  and  equable  climate,  where  game  was 
plentiful,  pasturage  possible,  and  agriculture  easily  pro- 
ductive. These  natural  advantages,  however,  are  not  suf- 
ficient. There  are  other  needs  besides  that  of  food. 
Even  in  primitive  savagery  there  was  a  demand  for  hard 
woods,  flint  and  jade,  colored  earths,  clay,  fibrous  plants, 
and  simple  luxuries.  Locations  furnishing  such  supplies 
developed  a  rude  system  of  barter  with  hordes  less  richly 
supplied.  As  civilization  advanced,  metals  came  to  be 


i8  THE  STATE  AND  GOVERNMENT 

necessities,  and  mines  were  sought  for  in  all  directions. 
Explorers  and  traders  established  centers  of  commerce 
wherever  mines  were  found.  Great  city  states  and 
empires  rose  one  after  the  other,  rising  as  they  became 
the  centers  of  trade  between  wealthy  and  populous 
regions,  and  falling  as  other  and  better  regions  were  dis- 
covered or  shorter  and  safer  routes  were  developed.  In 
this  way  rose  and  fell  the  empires  of  the  East  and  the 
later  civilization  of  Persia,  Greece,  and  Rome,  as  the 
mining  wealth  of  India,  Arabia  and  Africa,  Asia  Minor, 
Southeast  Europe,  and  the  outlying  countries  fringing 
the  Mediterranean  were  one  after  the  other  discovered 
and  utilized. 

Expansion  Through  Commerce. — The  domestica- 
tion of  animals  and  the  utility  of  some  of  them  as  beasts 
of  burden  developed  the  caravan  and  the  long  overland 
routes  of  Asia.  Water  transportation  along  the  danger- 
ous shores  of  southern  and  southwestern  Asia  lagged  far 
behind,  but  when  civilization  reached  the  eastern  shores 
of  the  Mediterranean,  first,  Crete  and  then  Phoenicia,  the 
earliest  of  sea  powers,  pushed  northward  through  the 
^gean  Sea  and  westward  to  Italy,  Phoenician  sea  mer- 
chants voyaging  even  as  far  as  the  Atlantic  seeking 
metals,  establishing  colonies,  and  carrying  with  them  the 
flourishing  civilization  of  the  East.  After  the  Phoenicians 
came  the  Greeks,  born  colonists  and  keen  traders,  who, 
building  on  the  contributions  of  ancient  civilization,  with 
versatile  mind  continually  sought  after  "some  new  thing" 
and  thereby  developed  the  highest  type  of  ancient  civil- 
ization. After  them  came  an  empire  of  exploitation,  a 
nation  with  a  developed  capacity  for  war,  administration, 
order,  and  law,  which  conquered  and  absorbed  one  after 
another  ancient  civilizations  and  barbarian  tribes,  bring- 


SOCIAL  BACKGROUND  OF  THE  STATE  19 

ing  all  under  the  common  yoke  of  Rome.  But  it  was  a 
nation  lacking  insight,  invention,  and  the  scientific  atti- 
tude of  mind;  it  became  ultra-conservative  and  failed 
through  lack  of  adaptability;  it  knew  in  economics  only 
exploitation  and  devastation;  and  with  all  its  political 
experience  and  its  capacity  for  law  and  administration,  it 
failed  to  establish  the  state  on  sound  economic  founda- 
tions. The  collapse  of  the  Western  Roman  Empire  drove 
civilization  back  to  the  East  and  to  the  South,  where  it 
flourished  for  nearly  a  thousand  years  longer,  at  Con- 
stantinople, in  Persia,  and  in  northern  Africa.  Western 
Europe  barely  held  its  own  for  five  hundred  years,  but 
then  came  in  the  tenth  century  the  discovery  of  metals 
in  the  Harz  Mountains,  the  rise  of  German  and  Italian 
cities,  and  the  Crusades.  European  civilization  was 
greatly  aided  by  the  Crusades  through  the  destruction  of 
many  turbulent  robber  barons,  the  revival  of  commerce 
with  Egypt  and  the  East,  and  the  consequent  inflow  of 
the  intellectual  attainment  and  culture  of  Greek  and 
Saracenic  civilizations.  The  use  of  the  compass  opened 
new  routes  from  China  to  the  Red  Sea  and  the  knowledge 
of  it  rendered  possible  the  discovery  of  America.  This 
discovery,  coupled  with  the  Fall  of  Constantinople,  trans- 
ferred the  trading  center  of  Europe  from  Italy  and  the 
Rhine  to  western  Europe,  for  the  mineral  wealth  of 
Mexico  and  South  America  poured  into  its  cities,  and 
the  great  expansive  movement  westward  in  commerce 
and  colonization  gave  new  vigor  and  energy  to  its  sea- 
faring nations. 

Expansion  Through  Manufactures. — When  the  era 
of  steam  began  in  the  eighteenth  century,  first  the  de- 
mand for  cotton  and  cotton  goods,  and  then  for  modern 
machinery,  gave  England  and  the  United  States  of 


20  THE  STATE  AND  GOVERNMENT 

America  their  opportunity,  through  their  possession  of 
immense  beds  of  coal  and  iron.  To-day  competing 
nations  are  searching  the  world  for  accessible  stores  of 
metal  ores,  fuels,  oils,  building  stone,  forests,  and  for 
fertile  plains  suited  for  grazing  and  agriculture.  These 
are  the  first  conditions  for  a  nation's  material  prosperity. 
If  other  factors  be  then  present,  such  as  facilities  in 
transportation,  abundant  and  intelligent  labor,  open  mar- 
kets, and  an  energetic  population,  a  basis  exists  on  which 
may  be  built  up  a  great  and  mighty  civilization. 

II.  The  Factor  of  Population. — In  considering  the 
effect  of  population  upon  political  development  it  is 
obvious  that,  other  things  being  equal,  the  numerical 
greatness  of  a  people  is  a  distinct  advantage  in  compe- 
tition, whether  in  war  or  for  economic  supremacy.  The 
chief  factor  in  determining  the  number  of  a  population 
is  the  food  supply.  Among  savage  peoples,  when  popu- 
lation presses  too  closely  on  food  supplies,  the  weakest 
are  regularly  put  to  death  and  perhaps  consumed  as  food. 
From  this  necessity  probably  arose  the  customs  of  in- 
fanticide and  the  slaying  or  exposing  of  the  aged  or 
infirm.  The  custom  of  infanticide  was  practiced  even 
by  patriarchal  peoples,  as,  for  example,  among  the 
ancient  Greeks  and  Romans,  and  to-day  in  China.  Popu- 
lation is  also  reduced  by  the  excessively  high  rate  of 
infant  mortality  among  uncivilized  and  semi-civilized 
peoples,  and  by  wars,  famines,  and  pestilences. 

The  Standard  of  Living. — Among  civilized  commu- 
nities the  standard  of  living  plays  an  important  part  in 
determining  the  increase  of  population.  The  demands  of 
social  life  are  so  numerous  and  expensive  that  the  higher 
social  classes  tend  to  restrict  the  number  of  their  offspring 
either  by  natural  or  unnatural  means.  The  wisdom  of 


SOCIAL  BACKGROUND  OF  THE  STATE  21 

this  "race  suicide"  is  open  to  question  from  the  stand- 
point of  social  and  national  development,  but  the  entire 
matter  is  debatable.  Presumably  the  "proletariat"  also 
will  reduce  the  size  of  their  families  when  the  rising 
standards  of  civilization  affect  them,  resulting  in  a 
stationary  population  as  in  France,  a  situation  fraught 
with  danger  when  rival  nations  have  larger  birth  rates. 

A  dense  population  is  not  really  an  advantage  to  a 
state  unless  the  masses  of  the  people  have  a  sufficient  and 
varied  food  supply,  so  as  to  develop  strong  physiques 
able  to  endure  hardship  and  to  resist  disease.  Under 
right  conditions,  at  least  in  a  competitive  age,  there 
develop  in  men  masterful,  manly,  and  aggressive  qualities 
of  mind.  If  population  presses  too  closely  on  food  sup- 
plies, the  people,  poorly  fed,  become  physically  inert,  they 
are  prone  to  disease  and  lack  mental  energy.  Such  per- 
sons, compelled  to  live  from  hand  to  mouth,  become 
improvident  and  remain  low  in  civilization  and  character, 
even  though  the  wealthier  classes  of  the  community  are 
comparatively  high  in  civilization.  This  evil  is  seen  at 
its  worst  in  the  tropics  where  the  per  capita  amount  of 
necessities  is  so  small,  and  the  fertility  of  the  soil  so 
great,  that  the  land  fairly  swarms  with  millions,  who 
barely  exist  in  times  of  plenty  and  who  die  by  the  thou- 
sand in  times  of  famine  and  pestilence  through  lack  of 
physical  vitality  and  through  mental  inertness.5 

Need  of  Economic  Opportunity. — The  virility  of  a 
population  also  depends  to  some  extent  on  the  stimulus 
of  economic  opportunity  and  of  the  intellectual  and  social 
environment.  Under  favorable  conditions  human  beings 
easily  become  economically  and  intellectually  versatile, 

6  In  respect  to  this  subject  consult  First  Conditions  of  Human 
Prosperity  by  R.  Russell. 


22  THE  STATE  AND  GOVERNMENT 

but,  when  narrowed  by  the  dreariness  of  a  monotonous 
life  and  occupation,  they  lose  ambition.  On  the  other 
hand,  a  mind  well  trained  by  proper  education  and  stimu- 
lating social  influences,  reacts  on  the  body  and  quickens 
its  activities.  Freedom  from  anxiety  also,  due  to  the 
knowledge  of  a  sufficient  income  and  of  the  safeguards 
of  well  enforced  law,  is  a  powerful  stimulus  to  physical 
energy  along  economic  lines.  When  such  conditions  are 
favorable,  there  readily  develops  an  energetic  and  aggres- 
sive spirit  that  brings  to  the  front  the  explorers,  mer- 
chants, inventors,  and  thinkers  of  the  age.  No  one,  to 
be  sure,  should  assert  that  an  inert  peon  of  the  tropics, 
by  increase  and  variation  in  diet,  would  at  once  become 
an  aggressive  American;  but,  undoubtedly,  several  gen- 
erations of  the  sustenance  and  training  which  Anglo- 
Saxons  have  had,  would  make  the  descendants  of  that 
peon  much  more  forceful  persons  than  their  ancestor. 
Caesar  had  a  rather  poor  opinion  of  the  fighting  and  stay- 
ing capacity  of  our  barbarian  forefathers,  but  unques- 
tionably Roosevelt's  Rough  Riders  of  the  Spanish  War 
would  have  a  similar  opinion  of  Caesar's  legions,  if  they 
should  ever  meet  in  combat  on  the  Elysian  fields. 

III.  Mentality  as  a  Factor. — Brain  capacity  and 
mental  development  are  most  important  considerations 
in  estimating  the  worth  of  a  population.  A  savage,  like 
an  animal,  has  no  insight  and  but  little  imagination.  He 
is  savage  in  disposition  only  when  ill  fed  or  ill  treated. 
Otherwise  he  is  peaceable,  good-natured,  and  indolent. 
Patriarchal  life,  holding  as  it  did  the  mass  of  its  popula- 
tion at  hard  labor,  developed  in  them  patient  endurance 
and  tireless  industry,  but  no  high  mentality.  That  de- 
veloped in  the  elders  and  masters,  who,  having  much 
leisure,  besides  domineering,  aggressive  qualities,  de- 


SOCIAL  BACKGROUND  OF  THE  STATE  23 

veloped  also  mental  acumen  and  philosophical  insight, 
always  characteristic  of  the  higher  classes  of  patriarchal 
systems.  Commercial  life  by  contrast  demands  aggres- 
siveness, ingenuity,  mental  alertness,  and  ruthlessness  in 
stamping  out  opposition.  An  age  of  production  through 
machinery  demands  scientific  insight,  executive  capacity, 
and  the  ability  to  master  details.  In  the  type  of  the 
dominant  peoples  of  Western  civilization  we  find  a  com- 
posite of  these  qualities.  Civilized  man  is  regulafly 
ruthless  and  merciless  to  an  opponent,  but  is  not  revenge- 
ful when  opposition  has  ceased.  He  is  guided  by  ideals 
when  material  interests  are  not  involved,  but  is  selfish 
and  covetous  at  the  possibility  of  gain.  He  is  masterful 
in  dealings  with  inferiors,  resourceful  when  necessity 
arises,  capable  of  patient  toil  and  hardship,  yet  is  fond 
of  ease  and  relaxation.  Energetic,  keen-minded,  inven- 
tive, and  idealistic,  yet  relentless,  avaricious,  and  dom- 
ineering, he  combines  in  himself  the  best  and  the  worst  of 
humanity.  He  is  a  savage  becoming  a  god,  and  has 
shown  great  natural  capacity  in  either  direction. 


CHAPTER  III 

THE  DEVELOPMENT  OF  POLITICAL  GOVERNMENT 

Four  Periods  of  Development. — With  this  outline 
of  the  development  of  civilization  as  a  background,  it  will 
now  be  possible  to  consider  at  more  length  the  several 
stages  in  the  development  of  political  government. 
These  stages,  it  will  be  found,  are  closely  associated  with 
the  conditions  of  economic  life,  and  for  that  reason 
economic  periods  of  development  will  form  the  best  basis 
for  an  historical  study.  The  periods  chosen  may  be  indi- 
cated briefly  as  follows : 

I.  The  primitive  period,  based  on  the  occupations  of 
hunting  and  fishing,  and  lasting  to  the  development  of  a 
pastoral  and  agricultural  mode  of  existence ; 

II.  The  patriarchal  period  or  period  of  settled  social 
institutions,  characterized  by  the  definite  occupations  of 
grazing  and  fanning,  and  by  the  growth  of  property 
rights; 

III.  The    period    of    urban    civilization,     developed 
through  the  growth  of  commerce  and  international  trade ; 
and 

IV.  The  period  of  industrial  civilization  emphasizing 
production  through  extensive  use  of  machinery  and  de- 
veloped power  such  as  steam  and  electricity  (machino- 
facture),  by  contrast  with  manufacture  and  the  natural 
power  of  earlier  stages,  such  as  wind  and  flowing  water. 

In  these  last  two  stages  the  specialized  occupations 

24 


DEVELOPMENT  OF  POLITICAL  GOVERNMENT     25 

incident  to  commerce  and  machinofactures  supplement 
the  fundamental  occupations  of  the  earlier  periods.  The 
first  period,  often  referred  to  as  the  age  of  savagery, 
emphasized  natural  foods,  the  occupations  of  hunting 
and  fishing,  and  the  use  of  stone  implements.  The  sec- 
ond period,  the  age  of  fixed,  static,  or  patriarchal 
civilization,  made  use  of  flesh  foods  and  grains,  obtained 
through  the  occupations  of  pastoral  and  agricultural  life, 
and  made  use  of  soft  metals  and,  to  some  extent,  of  iron. 
The  third  period,  the  age  of  commerce  and  urban  civiliza- 
tion, added  to  former  occupations  those  involved  in 
transportation  and  international  trade,  making  also  a 
large  use  of  iron,  and  gaining  food  to  some  extent  by 
exchange  of  manufactured  goods  for  needed  supplies. 
The  fourth  period,  characterized  by  a  complex  and  cen- 
tralized social  organization,  emphasizes  industrial  occu- 
pations and  abundant  productivity  through  the  utilization 
of  the  materials  and  forces  of  nature  by  means  of 
machinery.  Each  later  period  includes  what  has  gone 
before,  but  with  diminishing  emphasis.  Hunting,  for 
example,  becomes  a  diversion  more  than  an  occupation, 
and  foods  from  the  soil  are  substituted  for  flesh  as  the 
"staff  of  life." 

It  must  not  be  supposed  that  these  periods  are  syn- 
chronous for  all  mankind.  They  represent  grades  of 
development  and  apply  to  particular  racial  and  national 
groups  of  men,  not  to  mankind  as  a  whole.  The  larger 
half  of  humanity  *  is  still  in  one  or  the  other  of  the  first 
two  periods,  chiefly  in  the  second;  some  nations  after 
passing  into  the  third  period  have  sunk  back  into  the 
second ; 2  the  last  period  applies  only  to  a  numerically 

*Most  of  China,  India,  Russia,  and  Africa,  for  example. 
1  Asia  Minor  and  Persia  are  illustrations  of  this  change. 


26  THE  STATE  AND  GOVERNMENT 

small  part  of  humanity  made  up  of  those  modern  nations 
most  advanced  in  science  and  invention. 

I.     THE  PRIMITIVE  PERIOD 

The  Early  Condition  of  Man. — In  earlier  primitive 
times  human  beings  must  have  been  little  removed  from 
the  conditions  of  the  beasts  about  them.  They  had  no 
tools,  no  permanent  marriage  ties,  few  or  no  religious 
beliefs,  nothing  worthy  of  the  name  of  state,  and  sub- 
sisted, like  animals,  on  what  nature  spontaneously  pro- 
duced. In  later  primitive  times,  some  knowledge  of 
which  is  fairly  well  supplied  from  a  study  of  relics  and 
fossil  implements,  and  from  observation  of  low  civiliza- 
tions still  existing,  men  had  become  far  superior  to  the 
members  of  the  animal  world.  They  knew  the  use  of 
fire,  and  had  devised  weapons,  industrial  and  household 
implements,  and  the  canoe.  They  erected  rude  houses, 
and  made  use  of  clothing,  partly  for  protection  against 
the  inclemency  of  the  weather  but  chiefly  for  purposes 
of  ornamentation.  Personal  ornaments,  rude  drawings, 
idol  or  image-making,  and  the  monotonous  rhythm  of 
their  musical  implements,  dancing  and  singing,  all  testi- 
fied to  the  beginnings  of  aesthetic  development.  The 
voice  had  been  trained  into  articulate  speech.  The  mys- 
teries of  religion  were  manifested  in  fetishistic  and 
animistic  beliefs  under  the  guidance  of  the  conjurer  and 
.  the  medicine  man.  The  natural  metronymic  family  of 
earlier  times  was  still  the  dominating  type,  but  was 
developing  tendencies  looking  toward  the  patriarchal 
form.  Personal  property  rights  can  hardly  be  said  to 
have  developed  except  that  weapons,  ornaments,  and 
clothes  were  individual  possessions.  Ownership  in  land 
was  unknown,  except  that  each  savage  horde  had  hunt- 


DEVELOPMENT  OF  POLITICAL  GOVERNMENT     27 

ing  grounds  beyond  which  its  members  went  at  their  own 
peril.  Such  an  age  was  plainly  the  age  of  beginnings. 
Men  were  no  longer  animals  but  neither  had  they  much 
civilization. 

Evidently  in  such  a  low  stage  of  social  life  little  should 
be  expected  along  lines  of  political  development.  Yet 
the  basis  of  practically  all  we  have  to-day  may  be  traced 
back  to  the  later  primitive  period.  The  nation  was  rep- 
resented by  the  horde?  a  loosely  organized  mass  of 
human  beirigs  not  necessarily  closely  akin,  but  yet  held 
together  by  propinquity  and  by  ties  of  common  descent, 
customs,  and  language.  The  horde  was  not  a  permanent 
organization  by  any  means,  yet  in  normal  times  it  held 
together  for  purposes  of  food-getting,  for  offense  and 
defense,  and  for  social  or  convivial  gatherings.  Long 
established  customs  tracing  their  descent  from  time 
immemorial,  and  prohibitions  in  the  form  of  tabus  rep- 
resented early  law,  which  was  enforced  by  public  opinion 
under  the  guidance  of  the  elderly  men  of  the  horde,  who, 
as  persons  of  wide  experience  and  larger  knowledge  of 
traditions,  were  deemed  wise.  This  body  of  elders  is 
the  ancestor  of  modern  government  and  from  it  has 
evolved  the  three  historic  departments  of  government. 
Intercourse  between  hordes  was  regulated  by  a  fairly 
definite  mode  of  procedure,  the  germ  of  diplomacy  and 
international  law. 

The  Beginnings  of  the  State. — In  these  develop- 
ments there  surely  seem  to  be  the  elements  necessary 
for  the  existence  of  the  state — authority,  law,  procedure, 

'There  is  much  diversity  in  respect  to  the  terminology  applied 
to  the  several  forms  of  early  human  groups.  To  avoid  confusion, 
therefore,  the  reader  should  carefully  observe  the  idea  conveyed  in 
this  text  by  the  words  horde,  tribe,  and  clan,  and  should  remember 
that  the  same  groups  are  named  differently  by  different  writers. 


28  THE  STATE  AND  GOVERNMENT 

and  a  unity  organized  for  purposes  of  common  utility 
and  protection.  Yet  there  was  lacking  the  element  of 
permanency,  permanency  in  interests,  in  organization, 
and  in  purposes.  For  as  long  as  a  community  depends 
entirely  on  hunting  and  fishing  for  a  precarious  subsist- 
ence, nothing  really  permanent  in  civilization  can 
develop.  In  such  a  stage  of  life  hordes  of  men  and 
women  moved  about  from  place  to  place  seeking  food 
supplies.  When  food  was  abundant,  the  pleasures  of 
feasting  and  companionship  increased  the  membership 
of  the  horde.  But  when  food  became  scarce,  the  horde 
lost  its  unity  since  its  members  scattered  far  and  wide 
so  as  to  maintain  life  more  easily.  Under  such  condi- 
tions there  could  be  no  permanent  home,  no  opportunity 
for  the  steady  development  of  law,  order,  discipline,  and 
morality  and  no  time  for  mental  development  except 
along  lines  of  cunning  competition  with  hostile  beasts 
and  savage  men.  Physical  instincts,  derived  from  animal 
ancestors,  modified  slightly  by  custom  and  the  rule  of 
force,  and  perpetuated  by  hard  experience,  were  the  chief 
factors  in  life.  Continuity  of  purpose  and  forethought 
were  unknown.  Men  lived  from  hand  to  mouth  in  a 
desperate  struggle  for  existence,  and  by  no  possibility 
could  develop  what  might  properly  be  called  a  state. 
Yet  the  conditions  were  present  that  at  a  later  stage 
allowed  the  elements  of  the  state  already  in  existence  to 
develop  into  a  definite  body  politic,  exercising  sovereign 
authority  over  a  permanently  settled  community. 

II.     THE  PATRIARCHAL  PERIOD 

The  Development  of  the  Tribe. — Several  factors 
contributed  to  the  development  of  higher  civilization 
among  some  of  these  primitive  hordes.  The  demand  for 


DEVELOPMENT  OF  POLITICAL  GOVERNMENT     29 

food  and  safety  compelled  greater  ingenuity  in  the  manu- 
facture of  hunting  weapons,  as  well  as  cunning  and  skill 
in  the  use  of  them  against  human  enemies  whose  flesh 
in  those  days  supplied  a  much-desired  variety  in  daily 
food.  Women  developed  patient  endurance,  medicinal 
knowledge,  and  inventive  power,  as  they  plied  their  tasks 
of  rearing  the  young,  gathering  and  preparing  edible 
vegetation,  weaving,  house-building,  and  fashioning 
ornamentation.  If  the  sharper  mentality  of  a  horde  met 
its  reward  in  the  shape  of  more  abundant  food  supplies, 
improvement  in  the  physique  furnished  the  conditions  for 
the  possibility  of  a  still  higher  mental  development. 
Some  ingenious  community  at  last  hit  on  the  happy  ex- 
pedient of  saving  alive  the  young  of  wild  animals, 
domesticating  them,  and  thus  by  the  exercise  of  a  little 
foresight  and  self-denial,  it  was  enabled  to  keep  food 
supplies  on  hand  against  times  of  scarcity.  This  dis- 
covery of  human  supremacy  over  animals  susceptible  of 
gave  an  immense  impetus  to  civilization. 


Transient  hordes  became  firmly  compacted  Jtribes  held 
together  by  the  common  ownership  and  use  of  plentiful 
food  supplies  in  the  form  of  flocks  and  herds.  The 
vague  boundaries  of  hunting  grounds  became  definite 
areas  of  excellent  grazing  lands  fiercely  defended  against 
envious  aliens.  For  the  possession  of  flocks  and  herds 
meant  war  with  hungry  neighbors.  Hence  there  came  a 
demand  for  better  weapons,  wiser  leaders,  braver  men, 
who  as  shepherd-warriors  were  prepared  to  defend  their 
wealth  against  all  comers.  Such  an  aggressive  mode  of 
life  developed  masterful  qualities  in  the  men;  women 
were  relegated  more  and  more  to  the  inner  life  of  the 
group,  and  with  the  increase  of  domestic  responsibilities 
tended  to  become  household  drudges.  The  abundance  of 


30  THE  STATE  AND  GOVERNMENT 

flesh  foods  gradually  banished  cannibalism,  especially 
when  it  was  perceived  that  the  enforced  labor  of  a  cap- 
tured foe  was  of  more  utility  than  his  body  as  food. 
Permanent  food  supplies,  more  leisure,  and  greater 
mental  capacity  gave  opportunity  for  meditation,  and  as 
a  result  came  clearer  ideas  in  regard  to  human  relation- 
ships and  the  supernatural.  Crude  animistic  beliefs 
changed  into  theories  of  nature  and  hero  divinities,  pre- 
paring the  way  for  later  systems  of  nature  and  ancestor 
worship.  The  possession  of  permanent  sources  of 
wealth  brought  about  social  distinctions  between  the  rich 
and  the  poor,  the  master  and  the  slave,  as  property 
changed  from  communal  to  private  ownership. 

Permanent  Elements. — Though  many  centuries 
probably  elapsed  in  the  transition  from  the  old  to  the 
new,  a  period  filled  with  curious  blendings  of  primitive 
and  patriarchal  civilization,  yet  slowly  but  surely  the 
higher  civilization  supplanted  the  lower.  In  place  of  the 
horde  came  the  tribe;  the  growing  importance  of  the 
male  was  marked  by  the  semi-slavery  of  the  women  and 
the  rise  of  the  patriarchal  family  in  place  of  the  metro- 
nymic. Continuous  wars  brought  about  clear  notions  of 
leadership,  authority,  subordination,  law,  and  tribal 
regulation.  A  more  permanent  communal  life  developed 
mental  capacity,  social  institutions,  wiser  traditions,  and 
greater  ingenuity  in  the  manufacture  of  tools,  weapons, 
and  household  conveniences.  All  this  had  its  influence  on 
the  developing  state.  There  came  a  permanent  tribal 
life,  definite  social  institutions,  clear-cut  notions  of 
authority  and  law,  and  a  recognition  of  a  tribal  welfare, 
to  be  fought  for  and  strengthened,  even,  if  necessary,  at 
the  sacrifice  of  the  well-being  of  individuals.  In  such 
conditions  are  to  be  found  all  the  essentials  of  a  state, 


DEVELOPMENT  OF  POLITICAL  GOVERNMENT     31 

not  so  well  defined  as  in  modern  times,  but  yet  a  state  in 
its  fundamental  features. 

Agriculture. — The  patriarchal  period  attained  its 
maturity  with  the  development  of  agriculture.  No  one 
knows  who  first  planted  seed  in  the  ground  with  the 
thought  of  ultimately  reaping  its  product.  Possibly  the 
knowledge  of  seed-planting  may  have  existed  even  in 
early  primitive  times,  but  certainly  as  long  as  men  lived 
here  to-day  and  there  to-morrow  such  knowledge  was  of 
no  practical  use.  No  one  would  care  to  plant  seed  that 
another  would  almost  certainly  reap.  But  when  com- 
munities came  to  have  fairly  well  defined  boundaries 
within  which  they  might  roam,  and  when  in  the  pastoral 
period  a  diet  so  largely  of  flesh  demanded  some  varia- 
tion, chance  experiments,  natural  appetite,  a  little  reflec- 
tion and  forethought,  probably  all  contributed  to  the 
development  of  a  rude  system  of  agriculture,  merely  to 
supplement  the  food  supplies  furnished  by  flocks  and 
herds. 

It  should  not  be  inferred,  however,  that  agriculture 
always  followed  a  pastoral  life.  Many  hordes  inhabited 
lands  not  suited  to  grazing  and  in  such  cases  if  they 
developed  at  all  they  passed  directly  into  agriculture. 
The  rise  of  agriculture,  however,  gave  a  great  impetus 
to  civilization.  For  as  population  increased  men  had  to 
depend  more  and  more  on  vegetation  for  food  supplies. 
A  community  that  relies  chiefly  on  flocks  and  herds  for 
food  needs  much  more  land  than  one  that  depends  chiefly 
on  agriculture.4  As  the  competition  for  fertile  grazing 
lands  became  keener  with  the  growth  of  population,  a 
community  must  either  fight  oftener  and  more  vigorously 

4  It  is  estimated  that  twenty  acres  of  cultivated  land  would  furnish 
a  comfortable  living  for  the  average  peasant  family  in  Europe. 


32  THE  STATE  AND  GOVERNMENT 

for  sufficient  land  or  else  be  satisfied  with  what  it  had 
and  get  food  by  farming.  Fighting  was  probably  much 
more  attractive  than  working,  but  fortunately,  perhaps, 
another  alternative  presented  itself.  The  institution  of 
slavery  was  rapidly  developed.  Aliens  captured  in  war, 
weak  and  inferior  neighbors,  criminals,  and  debtors  of 
the  tribe  were  deprived  of  liberty  and  compelled  to  do 
the  drudgery  of  farm  labor;  in  this  way  they  secured 
for  their  masters  edible  grains  easily  turned  into 
nutritious  food  by  the  labor  of  the  women.  Slavery  in 
modern  times  is  a  curse,  but  in  earlier  periods  it  was 
probably  the  principal  agency  whereby  humanity  passed 
from  pastoral  life  into  agricultural,  and  was  thus  the 
determining  factor  in  the  development  of  the  chief  source 
of  modern  food  supplies.  Selfish  interests  and  experi- 
ence soon  added  improved  methods  of  farming  and  when 
tribes  came  to  depend  chiefly  on  the  products  of  the  soil 
for  sustenance,  the  pastoral  stage  of  their  existence  had 
passed  into  the  age  of  agriculture. 

Changes  in  Tribal  Organization. — Well  marked  ef- 
fects followed  this  important  change.  The  tribe  definitely 
broke  up  into  clans  composed  of  members  closely  united 
through  ties  of  kinship  and  economic  and  religious  inter- 
ests. The  character  of  these  clans  as  they  settled  down 
into  farming  village  communities  became  strongly 
patriarchal.  The  headship  of  the  clan  was  vested  in  the 
oldest  male  of  the  leading  family  but  tended  to  pass 
from  father  to  son.  Religion  secured  a  powerful  hold 
on  the  mind  by  emphasis  on  ancestral  worship.  The 
family  became  permanent  and  definite,  but  included  a 
wider  range  of  kin  than  the  modern  family.  The  entire 
clan  was  virtually  one  great  family  looking  to  the  head 
as  the  patriarch,  or  ruling  father,  who  guided  and  pro- 


DEVELOPMENT  OF  POLITICAL  GOVERNMENT     33 

tected  his  children.  They  bore  a  common  name,  had  a 
common  system  of  worship,  and  cultivated  their  lands 
and  pastured  their  herds  in  common.  Their  disputes 
were  settled  and  their  affairs  regulated  by  the  heads  of 
households  or  elders  in  joint  session  under  the  leadership 
of  their  chief. 

The  Village  Community. — In  this  system  each  vil- 
lage community  was  itself  a  petty  state  voicing  its 
sovereignty  through  the  chief  of  the  clan  who  was 
assisted  in  his  deliberations  by  the  older  and  more  influ- 
ential men  under  his  authority.  This  body  unitedly 
declared  the  customs,  adjudicated  cases,  and  regulated 
the  services  of  its  members  in  peace  or  war.  Such  a 
community  by  intermarriage  became  closely  kindred  in 
blood  and  in  social  customs,  and  thus  developed  a 
homogeneous,  autonomous,  self -centered  life  that  gave 
wonderful  permanence  to  that  form  of  organization.  To 
this  day  the  larger  part  of  humanity  live  in  agricultural 
village  communities,  practically  stationary  in  their 
civilization  and  retaining  customs  and  modes  of  thought 
having  a  history  of  many  centuries.5  Through  such 
communities  mankind  became  trained  in  manual  labor, 
endurance  of  toil,  reverence  and  respect  for  law  and 
authority,  tenacity  in  the  maintenance  of  civil  rights,  and 
veneration  for  the  supernatural.  Without  such  train- 
ing civilization  could  never  have  attained  stability,  nor 
would  humanity  have  developed  the  homelier  virtues  and 
domestic  tastes.  Its  conservatism,  however,  so  necessary 
in  a  static  civilization,  becomes  weakness  in  times  of 
transition  and  broader  development.  If  unable  to  adapt 
itself  to  newer  conditions,  such  a  community  readily  be- 

5  For  best  examples  of  such,  note  studies  of  the  village  life  of 
China,  India,  and  Russia. 


34  THE  STATE  AND  GOVERNMENT 

comes  the  prey  of  stronger,  more  aggressive  communi- 
ties and  falls  into  a  condition  of  subordination  and 
servitude. 

Loose  Confederations. — The  several  village  com- 
munities, which  had  once  been  parts  of  an  original  tribe, 
naturally  maintained  their  connection  one  with  another. 
This  intercourse  manifested  itself  in  joint  worship  at 
stated  times,  and  in  marriage  alliances,  commercial  deal- 
ings, and  joint  action  for  offense  and  defense  in  times  of 
war.  In  this  way  developed  loose  confederations  which 
in  many  cases  became  more  strongly  unified  through 
peaceful  alliance  or  through  the  superiority  of  a  power- 
ful community.6  From  such  confederations,  by  constant 
social  intercourse  and  intermarriage,  aided  by  ties  of 
kinship  and  religion,  there  might  easily  develop  a  tribal 
monarchy  like  that  among  the  Israelites  and  the  Homeric 
Greeks  under  Agamemnon.  If  the  conditions  that  make 
for  civilization  were  favorable,  and  able  leaders  were  in 
charge,  such  tribal  monarchies  readily  passed  into  still 
more  unified  kingdoms  and  empires,  not  strongly  cen- 
tralized as  in  modern  times,  but  presenting  that  type  so 
characteristic  of  Oriental  monarchies,  a  sort  of  confed- 
eration or  a  feudal  suzerainty,  a  unity  made  up  of  sub- 
ordinate units,  practically  autonomous  in  local  affairs, 
but  yet  tributary  and  in  general  matters  under  regula- 
tions ordained  by  the  overlord  or  king. 

In  such  communities  as  these,  whether  petty  village 
states  or  loosely  confederated  monarchies,  were  all  the 
necessary  elements  of  the  state.  Law  and  authority  were 
clearly  in  evidence;  definiteness  and  permanency  in  or- 

6  An  excellent  type  of  such  a  confederation  among  American 
Indians  may  be  found  in  Morgan,  Ancient  Society.  A  variation 
in  development  may  be  noted  in  the  early  history  of  Rome  with  its 
confederation  of  thirty  cities  (villages). 


DEVELOPMENT  OF  POLITICAL  GOVERNMENT     35 

ganization  had  been  attained;  there  were  well  defined 
ideas  of  rights  and  obligations,  and  a  fairly  clear  con- 
sciousness of  political  unity.  They  differed  radically 
from  modern  states,  however,  in  that  a  patriarchal  com- 
munity was  a  state,  family,  and  church  in  one.  These 
three  institutions  had  not  become  differentiated  in  the 
minds  of  men.  They  were  controlled  by  the  same  leaders 
and  might  be  considered  merely  three  aspects  of  the  same 
thing,  forming  a  kind  of  political  trinity  in  unity. 
Under  such  conditions  the  jurisdiction  of  the  state  proper 
did  not  extend  over  the  other  two  institutions,  unless  by 
a  legal  fiction  it  is  assumed  that  "what  the  sovereign  en- 
forces he  commands."7  Toward  the  end  of  the  patri- 
archal period  the  three  became  differentiated  in  thought 
and  were  looked  on  as  coordinate,  each  exercising  su- 
premacy in  its  own  sphere,  and  the  three  unitedly  repre- 
senting the  supremacy  of  the  entire  community.  In 
later  years  the  state  became  aggressive  through  the  in- 
fluences brought  about  by  commerce,  and  steadily  began 
to  encroach  on  the  sphere  of  parental  and  ecclesiastical 
control. 

III.    THE  PERIOD  OF  URBAN  CIVILIZATION 

The  Influence  of  Commerce. — A  third  stage  of 
political  life  was  ushered  in  through  the  development  of 
commerce.  Even  in  primitive  times  a  system  of  barter 
and  trade  had  developed  among  different  hordes.  A 
brisk  traffic  was  carried  on  in  the  exchange  of  salt,  food 
supplies,  ornaments  for  the  dress,  paints  for  the  body, 
and  jade,  flint,  and  metals  for  tools  and  weapons.  Be- 
tween centers  producing  such  forms  of  wealth  and  popu- 

7  For  discussion  of  this  point,  see  Willoughby,  Nature  of  the 
State,  p.  169, 


36  THE  STATE  AND  GOVERNMENT 

lous  centers  in  need  of  them,  well  beaten  paths  were 
made,  the  humble  beginnings  of  the  modern  railroad. 
When  wealth  multiplied  through  flocks,  herds,  and  agri- 
culture, men's  needs  multiplied  proportionately.  Com- 
merce kept  pace  with  the  demand.  Beasts  of  burden 
were  trained  to  the  yoke,  navigation  developed,  forms 
of  money  as  a  medium  of  exchange  were  devised,  and 
the  merchant  definitely  took  his  place  in  civilization. 
With  commerce  came  the  city,8  that  great  agent  in  social 
development. 

The  reason  for  the  rise  of  the  city  with  commerce  is 
obvious.  Certain  village  communities  found  themselves 
established  in  the  center  of  a  mining  district,  or  in  the 
heart  of  fertile  lands  well  suited  for  grazing  or  farming; 
others,  again,  at  favorable  spots  on  rivers,  such  as  the 
mouth,  a  junction,  or  the  head  of  navigation.  As  trade 
developed  between  mining  and  food  centers  having 
masses  of  population,  resting  places  at  regular  intervals 
were  established  for  the  convenience  of  travelers.  At 
all  such  centers  the  market  place,  developed  and  trade 
was  encouraged  by  the  maintenance  of  peace  and  order. 
The  termini  of  trade  routes  and  the  best  locations  be- 
tween the  termini  grew  into  great  centers  of  population. 
Here  gathered  the  wealth  and  learning  of  the  time. 
Here  was  to  be  found  merchandise  of  all  descriptions. 
From  all  parts  of  the  known  world  came  keen  men  of 
business,  travelers  of  broad  experience,  well  versed  in 
foreign  customs  and  ideas,  and  wise  men  eager  to  add 
to  their  knowledge.  By  constant  social  intercourse  and 
by  competition  of  ideas,  the  mentality  of  the  population 
rapidly  developed.  Increase  of  wealth  developed  new 

8  The  Greek  7r6Xis   (city)  is  .our  basal  word  for  politics  and  its 
derivatives. 


DEVELOPMENT  OF  POLITICAL  GOVERNMENT     37 

wants,  higher  learning,  broader  minds,  and  a  more 
thorough  organization  of  social  institutions. 

Changes  in  Political  Organization. — Evidently  such 
a  social  development  demanded  changes  in  political  or- 
ganization. The  members  of  a  conservative  village  com- 
munity living  in  practically  the  same  way  as  their  fathers 
might  well  continue  the  customs  and  habits  of  their 
ancestors.  But  when  the  population  and  wealth  of  the 
community  increased  by  leaps  and  bounds,  when 
strangers  of  wealth  and  brain  capacity  settled  in  ever 
larger  numbers  within  their  borders,  modifications  had 
to  be  made. 

The  village  lord  gradually  became  a  petty  king,  his 
little  council  became  a  great  body  of  advisers  and  ad- 
ministrators, the  petty  business  of  the  village  became  a 
mass  of  duties  requiring  the  services  of  many  hundreds. 
Then  followed  centralization  of  authority,  codification 
of  customs,  and  the  introduction  of  business  methods  in 
administration  through  the  organization  of  great  depart- 
ments of  government.  Increasingly  larger  numbers  of 
influential  residents,  whether  native  or  foreign  by  de- 
scent, shared  in  the  responsibility  of  government.  Such 
modifications  brought  about  the  development  of  the  city 
state,  best  known  through  the  classic  examples  of  Greece, 
Rome,  and  the  League  of  Hanse  Cities,  but  found  in  all 
early  civilizations  characterized  by  a  developed  commer- 
cial life. 

A  city  state,  by  war  or  more  peaceful  means,  might 
extend  its  influence  so  as  practically  to  control  many 
smaller  cities  and  large  areas  of  farming,  grazing,  and 
mining  lands.  In  this  way  developed  another  type  of 
ancient  monarchy,  one  much  more  strongly  unified  and 
centralized  than  tribal  or  feudal  monarchies,  because  its 


38  THE  STATE  AND  GOVERNMENT 

several  parts,  by  more  frequent  intercourse  and  more 
vigorous  mentality,  attained  a  greater  harmony  of  com- 
mon interests  and  a  consciousness  of  national  unity.  The 
short-lived  empire  of  Alexander  was  a  good  illustration 
of  this,  but  the  best  illustration  of  such  a  development 
is  seen  in  the  Roman  Empire,  which  through  war  ex- 
tended its  boundaries  in  all  directions  and  then  bound 
together  its  discordant  parts  into  a  harmonious  unity 
through  ties  of  commercial  interest,  centralized  provin- 
cial administration,  and  allegiance  and  submission  to  a 
common  law  and  an  imperial  sovereignty. 

National  States. — The  collapse  of  the  Western 
Roman  Empire  was  a  retrograde  step  in  civilization  and 
plunged  western  Europe  back  into  those  stages  of  politi- 
cal life  characterized  by  village  communities  and  city 
states.  The  so-called  feudal  system  represented  the 
movement  toward  confederation.  The  rise  of  the  feu- 
dalistic  Holy  Roman  Empire,  and  of  the  centralized 
Papacy  in  its  ambition  for  temporal  authority,  repre- 
sented the  movement  toward  the  confederation  and  cen- 
tralization of  empires.  The  failure  of  both  of  these  to 
realize  their  aims,  coupled  with  the  revival  of  commerce 
through  the  influence  of  the  Crusades,  the  invention  of 
the  compass,  and  the  discovery  of  America,  caused  the 
development  of  smaller  empires  or  kingdoms,  known 
usually  as  national  states.9  These  nations  were  com- 
mercial in  their  tendencies,  and  each  was  strongly  unified 
by  definite  communal  interests,  racial,  religious,  and  eco- 
nomic. This  unity  of  interests  tends  to  result  in  a  de- 
mand for  political  autonomy  or  independent  statehood 
and  is  usually  discussed  in  political  theorizing  as  the 

*For  example,  France,  Spain,  England,  and  the  Netherlands. 


DEVELOPMENT  OF  POLITICAL  GOVERNMENT     39 

principle  of  nationality.10  The  formation  of  national 
states  started  once  again  a  forward  movement  in  civili- 
zation after  a  thousand  years  of  seeming  inactivity, 
during  which  the  barbarians  of  the  West  were  slowly 
veneering  themselves  with  the  polish  and  civilization  of 
Judea,  Greece,  and  Rome.  The  movements  of  recent 
times  toward  world  empire  are  best  illustrated  by  the 
Napoleonic  period  in  France,  by  the  former  policies  of 
imperialistic  Russia  and  Germany,  and  by  the  expanding 
Empire  of  Great  Britain. 

IV.     THE  PERIOD  OF  INDUSTRIAL  CIVILIZATION 

The  Problems  of  Food. — The  last  and  greatest  era 
in  the  development  of  civilization  began  in  earnest  when 
from  about  the  middle  of  the  eighteenth  century 
machinery  was  definitely  applied  to  the  manufacture  and 
transportation  of  goods  and  to  the  production  of  foods. 
The  really  great  problem  of  material  civilization  is  to 
multiply  food  supplies  and  to  satisfy  the  material  wants 
of  humanity.  Population  increases  easily  and  readily 
under  favorable  conditions,  but  food  supplies  come  only 
by  hard  work  and  mental  toil.  Malthus  and  his  follow- 
ers have  shown  the  real  connection  between  population 
and  food  supplies,  holding  that,  under  natural  conditions, 
the  former  tends  to  multiply  far  more  rapidly  than  the 
latter.  Without  an  abundant  supply  of  wholesome  food 
man  cannot  do  his  best  work  nor  develop  a  high  civiliza- 
tion. Every  rapid  and  permanent  multiplication  of  food 
supplies,  therefore,  furnishes  the  basis  for  an  increase  in 

M  For  brief  discussion  of  nationality,  see  Willoughby,  op.  cit.,  pp. 
120122.  For  modern  illustrations  of  nationality,  note  the  attain- 
ment of  statehood,  as  the  result  of  the  Great  War,  by  Poland, 
Czecho-Slovakia,  Jujgo-Slavia,  and  the  little  East  Baltic  States  such 
as  Finland,  Lithuania,  etc. 


40  THE  STATE  AND  GOVERNMENT 

human  energy  and  progress.  All  the  great  eras  of  human 
development  have  been  preceded  by  a  permanent  addition 
to  the  sources  of  food  supplies.  This  may  be  illustrated 
by  the  development  that  came  from  the  use  of  weapons 
in  hunting,  tools,  and  machinery  in  industrial  life,  and 
from  the  utilization  of  power  in  production  and  trans- 
portation. 

Invention  of  Tools. — If  one  traces  the  wonderful 
history  of  human  ingenuity  in  comprehending  the  forces 
of  nature,  enslaving  them  and  compelling  the  energy  of 
the  universe  to  do  the  will  of  man,  it  becomes  possible  to 
understand  what  a  powerful  stride  was  taken  in  develop- 
ment when  men  for  the  first  time  consciously  fashioned 
nature's  materials  into  tools  and  learned  the  art  of  utiliz- 
ing natural  power.  The  first  step  in  this  direction  was 
the  beginning  of  civilization,  and  from  the  very  start  the 
importance  of  the  achievement  was  realized.  Men  die, 
but  their  ideas  and  inventions  live  after  them.  Each  new 
acquisition  becomes  the  parent  of  many  others,  and  each 
contributes  its  quota  to  the  multiplication  of  human  pos- 
sibilities. 

From  the  time  when  primitive  man  began  to  utilize 
as  a  weapon  a  rude  club  or  a  clinched  stone,  his  develop- 
ment has  been  marked  by  a  steady  advance  in  invention. 
The  club  and  the  stone  united  formed  the  hammer  and 
the  ax,  the  sharpened  stick  for  digging  purposes  devel- 
oped into  the  spade,  the  hoe,  and  the  plow.  The  edged 
tool  typified  by  the  knife  developed  from  the  keen  edge 
of  a  sharp  chip  of  flint.  From  such  primitive  tools  have 
developed  slowly,  but  with  rapidly  accelerating  speed,  the 
numerous  forms  of  tools  and  weapons  used  to-day  in 
military  and  industrial  life.  Each  great  stage  in  eco- 
nomic development  stimulated  men's  inventive  faculties 


DEVELOPMENT  OF  POLITICAL  GOVERNMENT     41 

and  enabled  them  the  better  to  utilize  some  newly  discov- 
ered force  of  nature.  Fire  was  rendered  obedient  to  the 
human  will ;  wind  and  water  were  harnessed  for  purposes 
of  transportation;  the  utilization  of  the  force  of  gravi- 
tation gave  strength  to  human  muscle;  the  inventive  ca- 
pacity of  the  race  learned  how  to  control  the  energy  of 
steam  and  electricity;  and  for  many  ages  the  knowledge 
of  the  possibilities  arising  from  the  comprehension  of 
the  organic  world,  and  of  the  utilization  of  the  fecundity 
of  nature,  has  furnished  tangible  and  direct  results  in 
the  multiplication  of  food. 

Utilization  of  Natural  Power. — Thousands  of  years 
lie  between  the  first  rude  boat  in  the  form  of  a  log,  pad- 
dled by  hand,  and  the  developed  ocean  liner  of  to-day. 
Yet  they  are  alike  in  that  they  both  utilize  natural  power 
for  purposes  of  transportation.  The  real  distinction  is 
quantitative  not  qualitative.  The  one  transported  with 
difficulty  and  danger  a  few  pounds  at  a  snail's  pace,  the 
other  carries  swiftly  and  safely  thousands  of  tons'  bur- 
den and  hundreds  of  lives.  This  development  in  the  use 
of  machinery  had  been  slowly  going  on  ever  since  the 
human  race  began,  but  about  the  middle  of  the  eighteenth 
century  men  apparently  had  reached  their  wits'  end  in 
productivity.  Production  by  hand  and  by  crude 
machinery  worked  by  hand  or  animal  labor  was  not  suf- 
ficient for  the  demand.  Population  was  checked  through 
the  relative  dearness  of  food  and  necessities,  and  com- 
merce could  not  expand  through  lack  of  goods  to  export. 
England  had  immense  wealth  in  iron  ores  and  coal,  but 
not  even  the  muscle  of  the  "village  blacksmith"  could 
turn  goods  out  cheaply  enough  and  fast  enough.  At 
last,  in  1769,  after  men  had  experimented  for  at  least  a 
hundred  years  with  steam,  came  Watt's  steam  engine. 


42  THE  STATE  AND  GOVERNMENT 

In  the  nineteenth  century  came  the  knowledge  of  the 
use  of  electricity,  and  from  these  times  the  inventive  in- 
genuity of  the  Western  nations  has  been  devoted  to  the 
multiplication  of  machinery  so  as  to  utilize  the  boundless 
energy  of  the  universe  through  control  over  the  power 
generated  by  steam  and  electricity.  The  significance  of 
all  this  is  that  the  productive  capacity  of  the  human  race 
in  both  goods  and  food  supplies  is  multiplied  many  thou- 
sandfold, with  the  advantage  that  machines,  instead  of 
demanding  their  proportionate  share  of  organic  food, 
are  satisfied  when  fed  with  fuel.  In  other  words,  the 
productive  power  of  the  population  may  be  multiplied 
geometrically  but  its  consumptive  power  arithmetically. 
Western  nations,  therefore,  may  under  normal  condi- 
tions of  peace  expand  their  populations  and  yet  through 
machinery  and  commerce  multiply  food  supplies  in  such 
abundance  as  to  banish  almost  from  possibility  the  dan- 
ger of  famine.  The  inevitable  effect  of  an  expansion 
of  material  capacity  is  a  corresponding  expansion  of  in- 
tellectual attainment.  Scientific  discoveries  in  chemistry 
and  biology,  rendered  possible  by  material  development, 
powerfully  aid  in  their  turn  in  the  development  of  food 
supplies  and  other  material  necessities. 

The  Struggle  for  Supremacy. — As  a  further  result 
of  this  development,  commerce  has  multiplied  past  all 
precedent,  every  corner  of  the  habitable  earth  has  be- 
come known  and  explored,  hermit  nations  are  forced 
out  for  better  or  for  worse  into  Western  civilization, 
and  governmental  activity  has  expanded  so  as  to  meet 
new  conditions.  Larger  interests,  greater  wealth,  and 
increasing  population  give  greater  fighting  power,  and 
the  leading  nations  are  inevitably  driven  into  competi- 
tion for  world  empire.  In  the  competition  they  seek  to 


DEVELOPMENT  OF  POLITICAL  GOVERNMENT     43 

develop  material  and  mental  capacity,  so  as  to  attain 
supremacy  in  international  affairs;  they  seek  to  expand 
by  extending  their  sway  over  nations  inferior  in  attain- 
ment, and  they  of  necessity  must  readjust  their  political 
organizations  so  as  to  manage  more  wisely  their  growing 
interests.  In  such  an  age  as  this,  after  so  great  a  war, 
political  change  is  inevitable.  Inevitably  the  readjust- 
ments of  the  peace  treaty  will  prove  but  temporary,  un- 
less by  chance  a  World  League  is  organized,  backed  by 
moral  and  physical  power  enough  to  keep  the  peace  of 
the  nations.  World  politics  of  the  present  finds  no  place 
for  the  petty  state,  the  backward  nation,  the  ultra-con- 
servative people.  Inevitably  the  more  vigorous  will  grow 
at  the  expense  of  their  weaker  neighbors.  The  age  de- 
mands from  states  as  well  as  from  individuals  broad 
and  high  intelligence,  moral  energy,  capacity  for  hard 
work,  and  bold  initiative  and  invention.  Intelligence  in 
the  state  involves  democracy  in  the  system;  immense  re- 
sources demand  executive  and  administrative  capacity; 
the  necessity  of  accomplishing  a  desired  end  by  concen- 
trating every  possible  ounce  of  energy  at  the  proper 
place  insures  concentration  of  governmental  power. 
Such  capacities  and  virtues,  in  a  struggle  for  national 
existence  or  world  supremacy,  are  not  matters  of  indif- 
ference but  necessities  for  survival,  and  hence  the  present 
age  tends  to  develop  a  political  theory  suited  to  the  at- 
tainment by  states  of  whatever  will  contribute  to  the 
highest  development  of  their  peoples. 

Summary. — The  various  aspects  assumed  by  the 
state  in  the  course  of  its  historical  development  may  now 
be  noted  in  review.  In  primitive  times  are  to  be  traced 
the  beginnings  of  the  fundamental  ideas  involved  in  the 


44  THE  STATE  AND  GOVERNMENT 

theory  of  the  modern  state;  the  loosely  organized  horde 
represents  the  nation,  and  the  power  wielded  by  its  nat- 
ural leaders  typifies  the  power  of  sovereignty  in  later 
times.  The  pastoral  stage  of  the  patriarchal  period  sub- 
stituted the  tribe  for  the  horde,  and  gave  greater  definite- 
ness  to  the  organization  of  the  community.  The 
agricultural  stage  gave  the  clan  or  the  village  community, 
which  slowly  developed  by  conquest  and  alliance  into 
loosely  confederated  leagues  and  empires.  The  influence 
of  rapidly  growing  commerce  gave  birth  to  the  city  state, 
best  known  in  the  familiar  Greek  form,  but  found  also 
in  the  mediaeval  cities  of  Germany  and  Italy.  In  the 
East,  in  Greece  under  Alexander,  and  in  Rome,  as  well 
as  in  later  Europe,  developed  the  idea  of  a  world  empire, 
the  dream  and  the  ambition  of  every  great  military  leader 
of  all  times.  This  ideal  was  translated  by  Christianity 
into  visions  of  a  spiritual  empire,  in  which  all  the  nations 
of  the  world  would  pay  allegiance  to  the  Founder  of  the 
Faith,  and,  with  the  development  of  the  Papacy,  to  his 
successor  seated  in  St.  Peter's  chair  at  Rome. 

The  rise  of  commerce  first  with  the  East  and  then 
with  the  West,  and  the  consequent  differentiation  of  in- 
terests among  the  peoples  of  Western  Europe,  resulted 
in  the  formation  of  national  states,  each  held  firmly  to- 
gether by  ties  of  common  interests  and  nationality. 
Intercourse  among  these  gave  great  impetus  to  the  de- 
velopment of  diplomacy,  international  law,  and  to  the 
appointment  of  permanent  embassies,  all  designed  to  aid 
in  the  development  of  economic  interests,  the  mainte- 
nance of  peace,  and  the  partial  humanizing  of  war.  The 
discovery  of  America  not  only  poured  mineral  wealth 
into  the  impoverished  nations  of  Europe,  but  ushered  in 
the  great  era  of  colonization  in  which  Portugal,  Spain, 


DEVELOPMENT  OF  POLITICAL  GOVERNMENT     45 

Holland,  France,  and  Great  Britain  vied  with  one  an- 
other in  seeking  out  by  exploration  all  of  the  unknown 
world  that  could  be  utilized  for  purposes  of  commerce 
and  exploitation.  The  eighteenth  century  gave  to  politi- 
cal life  the  parliamentary  system  of  England,  the  cen- 
tralized empire  of  Napoleon,  and  in  the  United  States 
of  America  the  federation,  an  improved  form  of  con- 
federation, combining  in  one  organization  the  advantages 
of  autonomous  commonwealths  with  the  high  centraliza- 
tion of  an  empire  in  matters  of  general  policy.  This 
form,  so  well  adapted  to  the  needs  of  great  empires,  is 
rapidly  proving  its  utility  as  a  form  of  government  and, 
indeed,  the  time  may  yet  come  when  the  smaller  states 
will  best  secure  their  autonomy  and  nationality  by  unit- 
ing in  federation  with  one  another  and  with  the  larger 
leading  states. 

These  in  brief  are  the  epochs  in  the  development  of 
political  government  and  if  this  line  of  evolution  and 
these  types  of  governmental  forms  be  fixed  in  mind,  the 
development  of  any  of  the  historic  states  of  the  world 
can  be  followed  with  much  greater  ease  and  profit. 


CHAPTER  IV 

DEFINITIONS  AND  EXPLANATIONS 

Political  Organization. — In  any  careful  study  of 
political  science  it  is  essential  that  from  the  outset  the 
most  common  terms  in  use  be  denned  as  the  basis  for 
the  more  detailed  study  of  later  pages.  Admittedly  there 
is  no  standardized  set  of  definitions  common  to  all  writ- 
ers in  the  science,  but  for  that  reason  it  is  all  the  more 
necessary  that  each  explain  clearly  the  meaning  he  at- 
taches to  general  terms. 

The  state,  it  will  be  remembered,  is  one  aspect  of  so- 
ciety. Society  is  the  more  general  term  including  as  it 
does  the  many  forms  of  human  association.  Human 
beings  habitually  tend  to  associate  together  in  social 
groups  or  communities.  In  a  community  the  members 
are  held  together  by  the  permanent  and  powerful  ties  of 
common  blood,  language,  customs,  religion,  and 
economic  occupations.  In  such  communities  special  as- 
sociations are  naturally  formed  for  the  purpose  of  safe- 
guarding and  developing  some  particular  common 
interest  or  set  of  interests,  a  tendency  especially  charac- 
teristic of  higher  civilization.  But  when  a  community 
definitely  and  permanently  becomes  organized  as  a  unit 
for  the  protection  of  the  life  and  property  of  the  whole 
community,  then  we  think  of  it  as  politically  organized 
and  call  it  a  body  politic. 

All  bodies  politic  are  not  states.  Throughout  the  in- 

46 


DEFINITIONS  AND  EXPLANATIONS  47 

habited  world  there  are  numerous  bodies  politic,  large 
and  small,  each  definitely  organized  for  the  protection 
of  life  and  property,  but  most  of  these  are  in  subordina- 
tion to  similar  but  larger  organizations.  Some  of  these 
larger  organizations  are  recognized  as  independent  and 
sovereign,  in  which  case  they  are  known  as  national  bod- 
ies politic  or  nations.  The  subordinate  bodies  politic 
are  known  by  such  names  as  provinces,  departments  or 
counties,  cities  or  municipalities,  and  townships,  villages, 
or  communes.  A  state  in  political  philosophizing  may 
best  be  defined  as  (i)  a  sovereign  political  unity,1  or,  if 
studied  concretely,  i.e.,  as  a  nation  with  its  governmental 
organization,  it  may  be  defined  as  (2)  a  national  body 
politic  having  sovereignty. 

The  term  people  is  applied  to  the  collective  mass  of 
inhabitants  having  domicile  within  the  state,  owing  it 
allegiance,  and  entitled  to  its  protection.  When  emphasis 
is  placed  on  the  fact  that  the  state  has  authority  over  its 
members,  who  owe  obligations  and  duties  to  the  state, 
these  are  called  subjects;  if  emphasis  is  on  the  fact  that 
the  members  have  rights  within  the  state,  then  the  term 
citizen  might  better  be  used.  The  word  nationals  is 
used  in  international  law  as  a  neutral  term  implying  al- 
legiance and  protection  but  emphasizing  neither  rights 
nor  obligations.  In  constitutional  forms  of  government 
adult  citizens,  under  certain  restrictions,  are  given  the 
right  to  participate  in  government  usually  by  bestowing 
on  them  the  rights  of  suffrage  and  office-holding,  and  the 
collective  body  of  such  citizens  is  known  as  the  electorate. 
This  body  in  popular  discussion  is  regularly  assumed  to 
be  the  exponent  or  mouthpiece  of  the  people. 

1  The  definition  minimizes  the  concrete  aspects  of  the  state,  stress- 
ing rather  the  notions  of  unity  and  sovereignty. 


48  THE  STATE  AND  GOVERNMENT 

As  the  state  with  its  sovereignty  is  the  nation  organ- 
ized for  the  protection  of  life  and  property,  there  will 
evidently  be  in  every  state  a  definite  political  organization 
authorized  to  exercise  the  powers  included  under  the 
sovereignty  of  the  state.  This  organization  is  called  the 
government,  and  may  be  defined  as  that  organization  to 
which  is  entrusted  by  constitution  the  right  to  exercise 
sovereign  powers  in  the  name  of  the  state.  The  state  is 
often  thought  of  as  a  person  and  as  a  person  has  a  will. 
The  will  of  the  state  when  formulated,  becomes  law. 
This  will  may  be  formulated  in  customs  having  a  legal 
sanction  or  in  commands  written  or  unwritten.  Law  is 
distinguished  from  social  customs  in  that  it  is  enforcible 
by  the  sovereign  power  of  the  state,  whereas  customs  are 
enforced  by  social  authorities.  The  highest  form  of  law 
is  the  law  of  the  constitution.2 

Sovereignty. — The  distinguishing  characteristic  of 
the  state  in  contrast  with  other  social  institutions  is  its 
possession  of  sovereignty.  As  a  state  exists  in  order  to 
safeguard  the  interests  of  the  community,  it  must  evi- 
dently have  authority  to  command  the  services  of  its 
subjects  and  power  to  enforce  its  commands.  This  au- 
thority and  power  is  called  sovereignty,  and  sovereignty 
may  be  defined  as  the  supremacy  of  the  state  over  other 
social  institutions  and  over  the  lives  and  property  of  its 
subjects.  It  is  the  most  essential  attribute  of  the  state. 
There  can  be  no  state  without  sovereignty  and  every 
body  politic  having  sovereignty  is  a  state.  The  word 
"supremacy"  must  not  be  interpreted  in  the  sense  of 
partial  supremacy.  Sovereignty  implies  absolute  su- 
premacy. A  state  must  be  entirely  free  from  the  domi- 
nation of  bodies  politic  external  to  itself,  and  must  be 
*  See  page  128. 


DEFINITIONS  AND  EXPLANATIONS  49 

completely  supreme  within  its  own  borders.  It  cannot 
surrender  in  whole  or  in  part  its  sovereignty  and  remain 
a  state.  It  may  delegate  the  exercise  of  one  or  more  of 
its  sovereign  powers  to  bodies  politic  subordinate,  or 
even  external,  to  itself,  if  only  it  reserves  the  right  to 
recall  such  delegated  power  or  powers  at  will.  Every 
political  power,  therefore,  exercised  by  a  subordinate 
body  politic  within  the  jurisdiction  of  a  state,  is  derived 
from  the  sovereignty  of  the  state,  which  may  recall  that 
power  at  will.3 

Sovereignty  in  International  Relations. — It  should 
be  said,  however,  that  in  international  law  some  expla- 
nation -or  modification  of  this  theory  of  absolute  sover- 
eignty is  necessary.  In  the  international  world  there  are 
powerful  dominant  states  to  which  the  theory  of  absolute 
sovereignty  fully  applies.  There  are  other  states,  how- 
ever, which  do  not  seem  to  have  complete  sovereignty. 
They  are,  to  some  extent,  whether  large  or  small,  under 
the  control  of  more  powerful  states.  They  are  spheres 
of  influence,  spheres  of  interest,  they  are1  in  tutelage, 
under  protection,  or  exist  merely  on  sufferance.  China, 
Persia,  Liberia,  Cuba,  Haiti,  Santo  Domingo,  and  many 
others  are  illustrations  of  such  relationships. 

It  may  be  said  that  each  of  these  states  really  is  sov- 
ereign and  of  its  own  accord  (under  duress)  agrees  to 
allow  the  superior  state  to  guide  its  international  affairs 

'Advocates  of  syndicalism  (France)  or  guild  socialism  (Eng- 
land) object  to  such  definitions  of  sovereignty,  fearing  what  they 
call  the  "absolute  state."  These  objections,  in  the  author's  opinion, 
are  based  on  a  confusion  in  the  mind  of  the  critics  between  state 
and  government,  state  and  society,  and  law  and  ethics.  The  abso- 
lute sovereignty  of  the  state  is  entirely  compatible  with  the  most 
radical  democracy  on  the  one  hand  or  the  most  extreme  govern- 
mental autocracy  on  the  other.  The  distinction  is  made  by  many  or 
few  regulations  or  restrictions  on  government  through  the  constitu- 
tion, as  explained  in  later  paragraphs  of  this  chapter. 


50  THE  STATE  AND  GOVERNMENT 

in  whole  or  in  part,  reserving  the  right  to  recall  at  will 
such  permission.  This  explanation  would  satisfy  the 
theory  but,  of  course,  is  mere  camouflage.  Or  again, 
one  may  deny  the  definition  of  sovereignty  as  absolute 
and  define  it  as  divisible,  in  which  case  the  sovereignty 
is  considered  as  divided  between  the  superior  and  the 
inferior  states.  Or  one  may  plainly  assert  that  the  so- 
called  states  are  not  really  states  at  all.  They  may  have 
been  so  once,  and  they  may  become  so  again,  but  as  long 
as  there  are  certain  powers  which  they  cannot  exercise 
except  at  the  consent  of  the  superior  state,  they  for  all 
purposes  have  lost  their  sovereignty  and  are  subordinated 
to  the  dominant  state  or  states. 

The  theory  of  the  equality  of  states  in  their  sover- 
eignty dates  from  the  time  of  Grotius,  but  in  practice  at 
least,  from  the  standpoint  of  power  and  quality  of  po- 
litical life,  there  are  several  grades  of  ''states,"  and  it 
is  an  international  legal  fiction  to  speak  of  all  as  equally 
sovereign.  This  "infringement"  on  the  sovereignty  of 
the  smaller  by  the  larger*  states  may  even  extend  to  in- 
terference in  domestic  affairs,  and  not  merely  in  inter- 
national relations.  This,  of  course,  is  simply  a  larger 
extension  of  the  power  of  the  dominating  state.  China, 
Haiti,  and  Santo  Domingo  illustrate  this  stage  of  inter- 
ference. 

Limitations  on  Governments. — In  respect  to  a 
state's  sovereignty  over  other  social  institutions  and  over 
persons,  objection  is  sometimes  made  that  this  supremacy 
of  the  state  is  a  dangerous  power  and  might  easily  result 
in  despotism  and  the  destruction  of  personal  liberty. 
This  objection  is  made,  as  a  rule,  by  those  who  confuse 
state  and  government,  identifying  one  with  the  other,  as 
was  customary  in  earlier  political  theory.  The  familiar 


DEFINITIONS  AND  EXPLANATIONS  51 

saying,  attributed  to  Louis  XIV,  illustrates  this  idea— - 
L'etat,  c'est  moi.  If  state  and  government  were  identi- 
cal, the  objection  would  be  well  taken.  By  definition, 
however,  the  government  is  merely  the  organization  of 
the  state.  The  state  by  constitution  may  place  restric- 
tions on  government,  forbidding  it  to  practice  tyrannical 
acts.  After  all,  the  aim  of  the  state  is  the  protection, 
not  the  destruction,  of  life  and  property  and  with  all  its 
defects  it  has  measurably  succeeded  in  its  purposes. 
Tendencies  toward  governmental  tyranny  can  regularly 
be  checked  by  an  intelligent  citizen  body,  who,  through 
revolution  if  necessary,  can  so  arrange  the  constitution 
of  the  state  as  to  make  the  government  a  powerful 
agency  in  the  development  of  all  that  is  needful  and 
helpful  in  national  prosperity.  The  state  through  its 
government  may  properly  exercise  whatsoever  powers 
seem  necessary  and  expedient  for  national  welfare,  pro- 
vided that,  in  so  doing,  it  meets  with  the  tacit  approval 
and  hearty  support  of  the  people.  If,  in  the  opinion  of 
the  people,  it  is  inexpedient  to  allow  the  government  to 
exercise  large  powers,  constitutional  restrictions  can 
minimize  governmental  activity  almost  to  the  vanishing 
point.  If,  on  the  other  hand,  it  seems  wise  to  enlarge 
the  powers  in  exercise,  one  limitation  after  another  can 
be  removed,  until  the  government  may  direct  and  regu- 
late a  very  large  proportion  of  the  powers  included  under 
the  notion  of  sovereignty. 

Such  limitations  on  the  exercise  of  sovereign  powers 
take  the  form  of  bills  of  rights,  constitutional  regula- 
tions of  governmental  power,  and  control  over  officials 
(through  elections  or  the  recall,  for  example),  effective 
enough  to  make  them  useful  agents  rather  than  tyranni- 
cal masters  of  the  people.  Just  as  an  autocratic  king 


52  THE  STATE  AND  GOVERNMENT 

may  be  so  dominated  by  his  ministers  as  to  be  a  mere 
puppet  in  their  hands,  so  a  sovereign  state  may  have  its 
governmental  organization  so  wisely  regulated  by  con- 
stitutional provisions  as  to  make  it  the  greatest  factor  in 
the  development  of  social  progress  and  individual  hap- 
piness. 

Public  Opinion. — These  regulations  or  limitations 
will  naturally  arise  through  the  expression  of  an  intel- 
ligent public  opinion.  Yet  as  a  matter  of  fact  even  in 
modern  democracies  the  expressed  will  of  the  govern- 
ment is  only  approximately  like  that  of  the  people,  and 
is  frequently  quite  different.  Hence  the  state,  voiced 
by  its  governmental  organs,  frequently  clashes  with  pub- 
lic opinion.  If  this  has  formal  and  regular  channels4 
through  which  it  may  readily  influence  the  government — 
well  and  good;  but  if  not,  then  that  state  has  a  constitu- 
tional system  which  does  not  truly  represent,  and  there 
will  inevitably  arise,  with  the  growth  of  intelligence,  dis- 
cord, internal  strife,  and  revolutions.  This  condition  is 
so  common  even  in  the  present  century  that  much  more 
attention  should  be  devoted  on  all  sides  (i)  to  the  de- 
velopment of  an  intelligent  public  opinion  voicing  all  the 
interests  of  society,  and  (2)  to  the  perfecting  of  govern- 
mental organization  so  as  to  allow  such  public  opinion 
definitely  and  forcefully  to  express  itself  in  the  formula- 
tion of  a  wise  national  policy. 

If,  on  the  other  hand,  the  government  of  a  state  is 
plainly  autocratic,  and  the  ruler  or  ruling  class  fails  to 
make  concessions  to  the  growing  intelligence  of  the  peo- 
ple, then  there  is  no  other  recourse  but  to  do  as  so  many 
nations  have  done  in  past  times — the  people  should  assert 

4  Such  as  an  electorate  with  fairly  large  powers,  or  political  parties 
enjoying  the  rights  of  free  organization  and  free  speech. 


DEFINITIONS  AND  EXPLANATIONS  53 

the  right  of  revolution,  should  take  up  arms  and  over- 
throw the  tyrannical  form  of  government  and  should 
organize  in  its  place  one  more  in  harmony  with  the  de- 
mands of  modern  freedom  and  constitutional  liberty. 

Development  of  Sovereignty. — The  conception  of 
sovereignty  as  supreme  authority  over  other  social  in- 
stitutions and  over  the  lives  and  property  of  subjects  is 
the  most  essential  principle  in  the  modern  theory  of  the 
state.  A  brief  statement,  therefore,  in  respect  to  the 
development  of  this  idea  of  sovereignty  may  prove  of  in- 
terest. It  has  already  been  said  that  when  a  community 
definitely  organizes  itself  for  self-protection,  it  thereby 
becomes  a  body  politic.  In  early  civilization,  as  already 
explained,  long  before  private  property  developed,  com- 
munities organized  war  bands  in  order  to  make  raids 
against  weaker  neighbors  or  to  resist  inroads  on  the  part 
of  warlike  enemies.  Such  a  necessity  was  ever  present 
in  those  troublous  times,  and  the  duty  of  fighting  for 
the  common  welfare  was  incumbent  on  every  member 
of  the  community  able  to  bear  arms. 

If  communal  life  was  peaceful  through  abundance  of 
food  supplies  and  absence  of  aggressive  neighbors,  no- 
tions of  economic  control  might  readily  arise  in  the 
regulation  of  working  customs  and  property  rights,  since 
the  notion  of  general  welfare  might  involve  communal 
rights  in  foods  and  property  as  the  fundamental  condi- 
tion of  life.  But  the  embryonic  government,  whether 
fundamentally  a  war  band  or  a  peaceable  economic  group, 
did  not  assert  its  right  at  that  time  to  regulate  religion, 
private  quarrels,  or  individual  property  rights  as  these 
developed.  It  merely  protected  general  interests  in  times 
of  offensive  or  defensive  war  and  left  to  the  family  and 
to  similar  social  institutions  the  regulation  of  other  forms 


54  THE  STATE  AND  GOVERNMENT 

of  social  life.  As  population  and  wealth  increased,  and 
human  social  relationships  became  more  complex,  the 
state  slowly  but  surely  began  to  extend  its  jurisdiction 
over  the  family,  withdrawing  by  degrees  from  the  con- 
trol of  this  institution  the  regulation  of  property  rights 
and  the  safeguarding  of  life.  At  the  same  time,  by  simi- 
lar processes,  the  authority  of  religious  organizations 
became  more  and  more  subordinated  to  the  state. 

Sovereignty  as  Supremacy. — Through  this  exten- 
sion of  authority,  the  power  of  the  state  was  greatly 
enlarged,  and  a  theory  of  sovereignty  as  supreme  power 
was  slowly  developed  in  order  to  justify  the  greater 
activity  of  the  state.  Such  a  theory  of  sovereignty  may 
be  traced  in  Athens,  in  Rome,  and  in  Europe  after  the 
Renaissance.  It  was  common  enough  even  in  mediaeval 
academic  discussions,  but  did  not  become  current  until 
the  seventeenth  century.  The  enormous  development  of 
wealth  and  population  since  that  time  has  caused  the 
general  adoption  of  such  a  definition  of  sovereignty,  for 
the  reason  that  an  efficient  regulation  of  public  interests 
demands  a  much  larger  sphere  of  governmental  activity. 
Older  theories  in  consequence  have  to  be  modified  to 
suit  the  newer  conditions.  The  political  theorists  of  the 
Reformation,  typified  by  Bodin  and  Hobbes,  and  the  so- 
cial contract  writers  of  later  times,  Locke,  for  example, 
brought  the  matter  definitely  into  discussion,  until  finally 
Rousseau,  in  his  Social  Contract,  sought  to  show  how  a 
theory  of  absolute  sovereignty  might  be  harmonized  with 
democracy.5  Ever  since  that  time,  the  theory  has  been 
worked  out  more  carefully  in  details,  and  is  coming  more 

6  Dunning,  Political  Theories,  and  Merriam,  History  of  the 
Theory  of  Sovereignty  since  Rousseau,  may  be  used  as  guides  in  the 
study  of  sovereignty. 


DEFINITIONS  AND  EXPLANATIONS  55 

and  more  into  acceptance.  Whether  fu%  accepted  or 
not,  all  progressive  nations  assume  the  theory  to  be  true, 
and  extend  governmental  jurisdiction  over  any  function 
whatsoever  when  public  interest  seems  to  demand  it.  In 
this  way  economic,  domestic,  and  religious  institutions 
are  increasingly  passing  under  the  power  of  the  state.  Il- 
lustrations of  this  tendency  are  seen  in  protective  tariffs, 
banking  and  currency  legislation,  in  the  subordination  of 
the  church  to  the  state,  in  the  regulation  of  inheritances 
and  kinship  rights,  in  civil  marriage  and  divorce,  and  in 
the  secularization  of  education,  and  the  assumption  of  it 
by  the  state  as  a  public  function.  It  should  not  be  as- 
sumed, however,  that  social  institutions  and  individuals 
will  ever  be  completely  dominated  by  the  state.  The 
supremacy  is  in  theory  only,  so  as  to  allow  for  emergen- 
cies. In  actual  practice  any  modern  state  grants  virtually 
autonomous  powers  to  family  and  church  and  to  indi- 
viduals in  their  general  social  life. 

Protection  of  Life  and  Property. — Though  the 
early  and  the  late  theories  of  sovereignty  seem  so  far 
apart,  they  can  by  interpretation  be  made  to  harmonize. 
Sovereignty  still  implies  that  the  state  merely  protects 
life  and  property,  but  the  difference  lies  in  the  meaning 
assigned  to  the  terms.  Protection  is  not  only  defense 
against  the  positive  aggression  of  a  hostile  foe,  but  de- 
notes also  a  parental  care  which  shields  against  every 
possibility  of  harm.  Life  is  not  merely  the  securing  of 
physical  existence,  but  also  the  fostering  of  mental  and 
spiritual  life.  Property  includes  not  material  wealth  only, 
but  intangible  goods,  such  as  reputation,  rights,  and  hap- 
piness. Under  such  broad  definitions  the  protection  of 
life  and  property  has  come  to  mean  that  the  state  may  do 
anything  expedient,  and  with  such  a  scope  for  govern- 


56  THE  STATE  AND  GOVERNMENT 

mental  activity  sovereignty  can  only  be  defined  as  abso- 
lute power.  One  may,  however,  feel  sure  that  in  general 
the  power  of  the  state  will  be  exercised  pan  passu  with 
the  utilization  of  scientific  methods  in  government,  and 
with  the  attainment  of  broader  intelligence  on  the  part 
of  the  people.  The  scope  of  power  exercised  by  a  des- 
potic government  is  in  fact  very  much  less  than  that  exer- 
cised under  constitutional  democracies. 

Importance  of  Political  Theories. — Discussions  of 
theories  such  as  these  are  not  merely  questions  for 
practice  in  debate.  They  are  attempts  in  explanation  of 
the  great  problems  presented  on  all  sides  in  political  life. 
New  conditions  of  life  compel  new  theories  and  restate- 
ments of  older  theories.  A  great  theory  clearly ,  explained 
is  a  revelation  to  the  men  of  its  day.  It  shows  them  the 
causes  and  the  reason  underlying  the  life  of  their  time, 
it  epitomizes  complex  phenomena  so  that  the  average 
man  may  understand,  and  it  is  one  of  the  greatest  aids 
to  the  development  of  a  larger  interpretation  of  civiliza- 
tion. When  civilization  is  practically  stationary,  politi- 
cal theorizing  is  merely  a  formulation  of  accepted  and 
authoritative  beliefs  in  regard  to  the  existing  order  of 
things.  Furthermore,  in  ancient  periods  the  authority 
of  the  state  was  so  largely  restricted  by  powers  held  by 
family,  church,  and  economic  groups  that  discussions  in 
regard  to  the  state  were  relatively  unimportant.  But  in 
times  of  transition  or  of  rapid  development  there  are 
regularly  wide  differences  in  political  theories,  and  these 
should  be  carefully  scrutinized  so  as  to  obtain  a  clearer 
and  more  scientific  explanation  of  the  facts  and  tenden- 
cies of  political  life.  Such  explanations  will  throw  light 
on  the  principles  involved  in  the  evolution  of  the  state, 
on  the  relative  importance  of  the  individual  and  of  the 


DEFINITIONS  AND  EXPLANATIONS  57 

nation,  and  on  the  governmental  exercise  of  sovereign 
powers.  They  make  clearer  the  value  of  democratic  and 
aristocratic  ideals,  and  indicate  the  emphasis  that  should 
be  placed  on  moral,  educational,  and  economic  factors 
by  wise  statesmen. 


CHAPTER  V 
SOVEREIGN  POWERS,  TAXATION  AND  WAR 

SOVEREIGN  POWERS 

The  Essential  Aspects  of  Sovereignty. — From  the 
consideration  of  sovereignty  itself  we  may  now  pass- 
to  the  discussion  of  the  several  powers  included  under 
that  term.  In  legal  discussions  the  authority  of  the  state 
in  respect  to  the  protection  of  life  and  property  is  often 
discussed  as  the  war  power,  the  police  power,  or  the 
power  to  preserve  the  peace  of  the  state  (the  king's 
peace).  But  whatever  particular  name  may  be  applied  to 
the  acts  of  government,  whether  performed  in  carrying 
on  war,  in  suppressing  riots  and  rebellion,  in  checking 
crime,  or  in  educating  its  citizens  and  safeguarding  their 
health,  it  is  but  another  name  for  sovereignty,  which  is 
the  collective  term  for  whatever  power  is  possessed  by 
the  state  and  exercised  by  the  government.  Certain  as- 
pects of  sovereign  power,  however,  are  so  important  in 
themselves  that  it  is  customary  to  speak  of  sovereignty 
as  though  made  up  of  essential  powers,  such  as  the  war 
power,  the  police  power,  the  power  of  taxation,  and  the 
power  of  eminent  domain. 

By  police  power,  a  term  under  which  should  properly 
be  included  the  so-called  war  power,  is  meant  the 
power  of  the  state  to  do  anything  needful  for  the  safety 
and  welfare  of  the  nation  (salus  populi  suprema  lex). 
The  power  of  taxation  implies  that  the  state  may  demand 

58 


SOVEREIGN  POWERS  59 

from  its  subjects  the  services  and  property  necessary  for 
its  support.  The  power  of  eminent  domain  implies  that 
the  state  has  the  right  to  take  from  its  subjects  their 
lands  or  property  for  public  use.  In  all  states  that  have 
developed  along  democratic  lines  these  powers  are  con- 
stitutionally safeguarded,  so  as  to  secure  the  people 
against  governmental  tyranny,  as,  for  example,  when  the 
constitution  provides  that  the  government  make  proper 
compensation  for  lands  taken  under  eminent-domain  pro- 
ceedings. In  practice,  however,  it  is  understood  that  such 
restrictions  are  for  times  of  peace.  When  stern  neces- 
sity demands  it,  the  riot  act  is  read  or  martial  law  pro- 
claimed, civil  and  constitutional  guaranties,  like  habeas 
corpus,  are  suspended,  and  the  government,  in  the  exer- 
cise of 'the  so-called  war  or  police  power,  takes  into  its 
hands  the  full  powefS  of  sovereignty  over  life  and  prop- 
erty on  the  plea  that  inter  arma  leges  silent.  In  well- 
ordered  states,  when  the  crisis  is  over,  the  government 
may  be  brought  to  account  for  the  exercise  of  any  un- 
necessary arbitrariness.  Whether  in  times  of  war  or 
peace,  the  acts  of  government  are  assumed  to  be  per- 
formed pro  bono  publico.  Acts  for  individual  or  class 
benefit  against  public  welfare  are  never  constitutional 
but  are  mere  acts  of  tyranny.  Against  such  there  may 
by  chance  be  a  legal  remedy  but  a  series  of  tyrannical  acts 
without  redress  justifies  revolution. 

It  is  easy  to  see  in  all  this  that  the  so-called  police 
power  is  merely  another  name  for  sovereignty,  and  that 
the  other  so-called  essential  powers  are  simply  implica- 
tions arising  from  that.  If  the  state  is  to  protect  the 
nation  from  harm,  evidently  it  must  have  the  power  to 
raise  the  means  for  the  performance  of  this  duty.  It  may 
do  this  by  demanding  the  services  of  its  subjects,  or  by 


60  THE  STATE  AND  GOVERNMENT 

levying  a  per  capita  tax  on  them,  or  by  taking  from 
them  or  some  of  them  whatever  property  it  needs.  All 
methods  are  unpopular  with  subjects,  who  never  pay 
taxes  with  cheerfulness  or  perform  forced  labor  for  the 
state  with  alacrity.  From  hard  experience  the  state  has 
gradually  learned  to  compromise  with  its  subjects,  and 
now  regularly  accepts  a  financial  equivalent  for  services 
and  an  annual  payment  for  the  support  of  the  govern- 
ment. But  in  case  of  necessity  the  state  does  not  hesitate 
to  order  its  able-bodied  subjects  into  the  army  or  navy, 
or  to  compel  them  to  assist  in  the  suppression  of  crime, 
or  to  labor  on  public  works  or  in  the  public  service,  even 
without  compensation.  Nor  would  it  hesitate  undq'r 
similar  circumstances  to  levy  forced  contributions  from 
the  wealthy,  or  to  appropriate  to  its  own  use  supplies 
wherever  found,  or  to  seize  any  land  needed  for  public 
use.  In  other  words,  the  sovereignty  of  the  state  implies 
a  virtual  ownership  of  the  services,  property,  and  land 
of  its  subjects,  as  far  as  these  are  necessary  for  the 
preservation  of  the  life  of  the  state.  The  decision  as  to 
the  necessity  of  all  this  lies  with  the  state  through  its 
officials,  who  are  restrained  either  by  constitutional 
checks  or  by  the  fear  of  assassination,  rebellion,  or  revo- 
lution. 

The  Development  of  Sovereign  Powers. — The  state 
of  former  days  in  the  exercise  of  its  powers  devoted 
most  of  its  energy  to  war  and  to  the  maintenance  of 
internal  peace.  Yet  as  it  assumed  authority  over  the 
many  aspects  of  social  life  including  economic  organiza- 
tions, the  family,  and  the  church,  it  deprived  these  of 
many  powers  formerly  under  their  jurisdiction.  From 
the  family,  for  instance,  it  assumed  regulation  over  such 


FORMS  OF  TAXATION  61 

matters  as  kinship,  marriage,  and  inheritance;  it  is  now 
gradually  assuming  many  of  the  functions  once  exer- 
cised by  the  church,  such  as  education,  the  administra- 
tion of  charity,  and  the  regulation  of  morality,  health, 
art,  and  amusements.  In  recent  centuries  the  church  it- 
self has  in  some  states  fallen  under  governmental  juris- 
diction, so  that  its  organization,  and  at  times  even  its 
theology,  is  regulated  more  or  less  completely  by  law. 
Economic  institutions  admittedly  are  so  fundamental  to 
national  prosperity  that  government  finds  it  impossible 
to  let  them  alone  (laissez-faire)  and  is  constantly  "in- 
terfering" with  them  so  as  to  promote  national  economic 
well-being. 

In  order,  therefore,  to  have  in  mind  the  trend  of  gov- 
ernmental activity,  some  attention  should  be  given  to  the 
development  of  the  exercise  of  sovereign  power  in  the 
more  important  of  these  fields,1  prefacing  the  discussion 
with  a  brief  account  of  the  development  of  taxation. 

FORMS  OF  TAXATION  2 

The  power  of  taxation  has  become  increasingly  bur- 
densome with  the  growth  of  the  scope  of  governmental 
activity,  since  the  state  in  exercising  its  supervisory  and 
administrative  powers  has  regularly  proved  to  be  an  ex- 
pensive necessity,  and  the  burden  of  taxation  has  too 
often  been  a  source  of  discontent  and  rebellion.  A  state 
best  shows  its  wisdom  when  it  proves  able  to  raise  an 
income  that  will  at  once  support  the  government  gener- 

1Good  illustrations  of  the  early  functioning  of  a  state  may  be 
found  in  Stubbs,  Constitutional  History  of  England,  vol.  i,  and  in 
Gummere,  Germanic  Origins. 

3  In  Bibliography,  Section  III,  see  Dowell,  History  of  Taxation  in 
England. 


62  THE  STATE  AND  GOVERNMENT 

ously  and  yet  not  check  productivity  on  the  part  of  the 
people.  An  efficient  system  of  taxation  is  one  of  the 
highest  marks  of  statesmanship.  It  is  essential,  there- 
fore, that  one  have  in  mind  a  brief  outline  of  the  numer- 
ous forms  and  methods  of  taxation  used  by  the  state  in 
the  course  of  its  development. 

Taxation  through  Service. — Taxation  in  its  early 
crude  forms  was  naturally  suited  to  the  conditions  of 
savage  or  barbarian  life.  As  war  was  the  chief  and 
almost  only  business  of  the  state,  its  activity  was  inter- 
mittent. Taxation  consisted  in  a  demand  for  the  services 
of  its  fighting  men  for  war  and  of  other  capable  mem- 
bers of  the  community  for  purposes  of  advice,  defense, 
and  maintenance.  In  time  came  regulations  as  to  the 
kind  of  arms  and  the  amount  of  food  and  other  supplies 
each  should  furnish.  If  the  number  of  fighting  men  was 
in  excess  of  the  demand,  a  system  of  drafting  developed. 
The  state's  power  of  taxation,  then,  implied  its  right  to 
enroll  or  to  conscript  its  able-bodied  men  for  war  and 
to  demand  suitable  arms  and  supplies.  Other  govern- 
mental expenses,  if  any,  were  met  by  the  chiefs  or  kings 
themselves,  who  considered  governmental  privileges  and 
responsibilities  personal  perquisites,  not  a  public  trust, 
and  naturally,  therefore,  paid  expenses  from  their  own 
private  incomes.  Offerings,  gifts,  and  tribute  from  sub- 
jects and  subordinate  communities  furnished  substantial 
additions  to  private  funds,  and  special  expense  might  be 
met  by  forays  on  neighboring  enemies  or  by  confiscations 
and  seizures.  Public  lands,  also,  won  by  conquest  or 
held  in  joint  possession,3  often  furnished  a  large  source 
of  revenue. 

3  For  example,  the  ager  publicus  of  Rome,  the  Crown  lands  of 
England,  or  the  public  domain  of  the  United  States  of  America. 


FORMS  OF  TAXATION  63 

As  the  state  grew  in  importance,  it  assumed  other 
functions  that  involved  men's  services.  Roads  and 
bridges  had  to  be  built  for  war  and  commercial  purposes ; 
public  buildings,  such  as  temples,  palaces,  monuments, 
and  fortresses  had  to  be  erected ;  cities  were  founded,  ir- 
rigating canals  dug,  public  lands  cultivated,  and  civic 
business  administered.  All  these  involved  taxation,  and 
the  system  employed  was  similar  to  that  used  in  war. 
All  able-bodied  men,  for  example,  might  be  forced  to 
labor,  or  a  district  might  be  required  to  furnish  a  quota 
of  workers,  or  a  tax  might  be  levied  from  the  proceeds 
of  which  necessary  public  work  would  be  performed.  In 
earlier  systems  office-holding,  like  other  services,  was 
compulsory  and  often  involved  irksome  toil  and  heavy 
expense,  so  that  only  wealthy  nobles  might  hold  office. 
It  is  in  modern  systems  that  the  emoluments  of  office 
cause  it  to  be  sought.  As  class  distinctions  developed, 
taxation  became  differentiated.  The  landed  nobility  held 
office  and  performed  war  duties,  wealthy  merchants  paid 
heavy  taxes  and  the  poor  were  liable  to  industrial  labor 
and  war  service. 

Taxation  of  Property. — A  definite  system  of  tax- 
ation came  into  use  with  the  rise  of  private  property  and 
the  personal  ownership  of  flocks  and  the  products  of 
agriculture.  Its  first  form  was  the  levy  of  a  definite  per 
cent  of  the  produce  of  the  flocks  or  herds  or  of  the  fruits 
and  crops  of  the  land.  The  privilege  of  collecting  this, 
involving  much  extortion,  was  given  to  favorites  or  sold 
to  collectors,  the  publicani  of  the  New  Testament.  At 
a  later  period  the  tax  on  the  produce  of  land  was  trans- 
ferred to  the  land  itself.  When  to  this  was  added  a  tax 
on  property  fixed  to  the  land,  e.g.,  a  building,  we  have 
the  modern  idea  of  real  estate  as  distinct  from  movable, 


64  THE  STATE  AND  GOVERNMENT 

or  personal,  property.  Personal  services  were  gradually 
commuted  for  other  forms  of  payment  and  are  now 
rarely  demanded  except  for  purposes  of  war.  At  the 
time  of  the  great  earthquake  in  San  Francisco,  for  ex- 
ample, all  able-bodied  citizens  were  compelled  to  work 
on  the  ruins;  in  some  rural  sections  of  the  United  States 
road  taxes  may  be  paid  in  money  or  worked  out  through 
personal  service  in  the  construction  or  maintenance  of 
roads  in  the  taxpayer's  district. 

In  farming  communities  real  property  is  naturally 
large  in  amount  when  compared  with  personal  property, 
but  the  rise  of  commerce  and  manufactures  multiplied 
this  latter  form  of  property,  resulting  in  the  development 
of  newer  forms  of  taxation.  Besides  the  direct  tax  on 
personal  property,  always  hard  to  estimate  and  to  collect, 
came  taxes  on  goods  sent  out  or  brought  into  a  country, 
the  modern  export  and  import  taxes.  Again,  a  tax  might 
be  levied  on  goods  manufactured  for  the  purpose  of  do- 
mestic sale,  or  on  the  sales  themselves,  or  on  the  profits 
of  business  transactions;  or  on  special  business  transac- 
tions, as  a  stamp  tax;  or  on  occupations,  a  special  form 
of  which  is  the  license  tax,  for  permission  to  enter  on 
business  which  from  its  nature  must  be  under  govern- 
mental supervision,  such  as  the  sale  of  liquors,  explosives, 
or  poisons.  A  common  but  obnoxious  tax  is  the  poll,  or 
head,  tax.  Income  and  inheritance,  or  legacy,  taxes  have 
a  history  of  many  centuries.  They  were  levied  in  the 
classic  period  and  owing  to  the  exigencies  of  the  war 
period  have  become  increasingly  popular  with  govern- 
ments. Taxes  on  corporations  and  on  franchise  privi- 
leges furnish  a  constantly  increasing  revenue  for  the 
state.  The  state  even  may  itself  engage  in  business  for 
public- welfare  purposes  and  derive  income  from  the  ex- 


FORMS  OF  TAXATION  65 

cess  of  profits  over  expenditure.  The  conditions  of 
modern  business  life  are  so  complex  by  contrast  with 
those  of  former  centuries,  that  national  systems  of  tax- 
ation are  undergoing  rapid  changes  and  are  constantly 
subject  to  revision  so  as  to  suit  newer  conditions  of  eco- 
nomic life  and  changes  in  the  variety  and  intensity  of 
public  demands. 

The  Budget. — The  expense  of  government  is  so  in- 
fluenced by  the  whims  and  private  interests  of  citizens 
and  office-holders,  that  it  has  often  proved  difficult  to 
balance  expenditures  with  receipts.  Then,  too,  sudden 
emergencies,  such  as  war,  or  unusually  expensive  public 
works,  might  make  an  unexpected  deficit.  For  this  rea- 
son in  modern  states  a  budget  is  carefully  prepared  in 
advance,  showing  possible  expenses  and  estimated  re- 
ceipts and  indicating  changes  needed  in  taxation  so  as  to 
avoid  too  large  a  deficit  or  surplus.  In  the  United  States 
the  national  government  is  slowly  moving  towards  the 
adoption  of  a  budget  system  and  about  three- fourths  of 
the  commonwealths  (states)  have  already  adopted  some 
form  or  other  of  the  budget.  In  less  scientific  days,  in 
case  of  special  emergency,  great  reliance  was  placed  on 
forced  loans,  or  on  the  confiscation  of  the  property  of 
persons  charged  with  disloyalty,  or  of  wealthy  corpora- 
tions like  the  cKurch,  or  of  unpopular  foreigners  like 
wealthy  Jews.  Fees  from  petitioners  or  from  litigation 
furnished  a  large  source  of  revenue,  as  also  the  income 
from  the  sale  of  office,  special  privileges,  or  monopolies, 
or  from  the  debasement  of  the  coinage.  Under  color 
also  of  such  powers  as  maintenance,  purveyance,  and 
eminent  domain,  or  the  right  of  seizure  in  time  of  war, 
large  additions  to  revenue  could  be  made  when  necessary. 
All  such  irregular  forms  are  passing  out  of  use,  and  in 


66  THE  STATE  AND  GOVERNMENT 

constitutional  governments  seizure  of  any  sort  is  now 
regularly  accompanied  by  a  fair  compensation  to  the 
owner. 

Aside  from  the  difficulty  involved  in  settling  on  the 
kind  and  subject  of  taxation,  there  are  inherent  difficul- 
ties in  devising  efficient  systems  of  assessment  and  col- 
lection. The  old-fashioned  system  of  "farming"  or  leas- 
ing out  the  privilege  of  collecting  taxes,  so  productive  of 
tyrannical  abuses,  and  its  counterpart  in  feudal  lordships 
and  dues,  have  been  superseded  by  elaborate  schemes  of 
assessment  and  collection  by  responsible  governmental 
officials.  The  ideal  of  a  fair  and  impartial  assessment 
is  exceedingly  hard  to  realize,  and  in  practice  the  burden 
of  taxation,  both  direct  and  indirect,  is  proportionately 
heavier  on  the  average  person  of  small  property  and  in- 
come. Such  evils  will  slowly  disappear  as  a  more  intelli- 
gent democracy  dictates  the  policy  and  administration 
of  government. 

THE  WAR  POWER 

War  and  Peace. — The  original  sovereign  power  of 
the  state,  as  already  explained,  is  that  of  war.  Even  now 
a  state's  chief  business  is  to  be  ready  for  war  and  to 
wage  it  whenever  national  safety  or  national  interest 
demand  it.  In  modern  times  diplomacy  along  with 
methods  of  arbitration  is  becoming  increasingly  impor- 
tant as  a  means  whereby  dangerous  disputes  may  be  ad- 
justed and  treaties  for  offense  and  defense  negotiated. 
In  a  rude  civilization  a  formal  notification  of  war  is  not 
deemed  necessary;  each  state  seeks  to  attack  its  rival 
unawares  and  preferably  when  the  latter  is  poorly  pre- 
pared. In  more  developed  states  a  formal  notification 


THE  WAR  POWER  67 

is  common,  though  diplomatic  negotiations  usually  sup- 
ply the  information  long  in  advance  of  the  formal  proc- 
lamation. In  theory  no  state  declares  war  or  makes 
peace  without  the  consent  of  the  dominant  interests  or 
classes  within  the  state.  In  practice  this  power  has  to 
be  confided  to  the  head  of  the  state  in  order  that  no  time 
may  be  lost  in  case  of  emergency.  The  head  of  the 
state,  however,  is  always  in  touch  with  the  leaders  in 
national  affairs  and  is  advised  by  them.  These  dominant 
interests  vary  with  the  economic  development  of  the  state. 
At  first  they  were  voiced  by  the  elders  and  war  leaders 
of  the  horde,  then  by  the  heads  of  families  in  early  pa- 
triarchal times,  at  a  still  later  stage  by  the  heads  of  all 
important  clans  and  families,  together  with  men  eminent 
for  public  services  in  war  or  peace.  When  commercial 
states  developed,  the  possession  of  large  wealth,  whether 
personal  or  landed,  gave  the  owner  a  voice  in  council. 
To  the  voice  of  these  has  been  added  the  will  of  the  peo- 
ple as  a  whole,  made  known  through  their  representa- 
tives. Rarely  would  a  modern  state  venture  upon  the 
step  of  declaring  war  or  of  making  peace  without  the 
hearty  accord  of  public  opinion  formally  or  informally 
expressed. 

Service  in  Army  or  Navy. — All  able-bodied  men  by 
theory  must  serve  in  the  army  or  navy  or  in  services  sub- 
sidiary to  these.  In  times  of  great  stress  women  also 
may  be  drafted  into  the  industries  or  into  vocations 
suited  to  their  strength.  If  war  is  always  imminent,  all 
men  are  given  a  military  or  naval  training  and  a  sufficient 
number  kept  in  readiness  for  immediate  service.  If  a 
state  is  so  situated  as  not  to  fear  war,  it  does  not  enforce 
military  service  and  depends  on  volunteers  in  cases  of 
emergency.  Occasionally  a  small  standing  army  is  main- 


68  THE  STATE  AND  GOVERNMENT 

tained  as  a  nucleus  about  which  a  larger  army  may  be 
formed.  In  the  same  manner  a  navy,  large  or  small  as 
may  seem  best,  is  kept  in  readiness  for  emergencies.  In 
tribal  states  petty  wars  were  fought  by  volunteers  who 
delighted  in  the  excitement  of  battle;  larger  wars  de- 
manded the  services  of  all  the  men  of  the  tribe.  In  the 
stage  of  developing  confederation,  or  feudalism,  each 
district  sent  its  quota  for  a  common  war.  In  modern 
times  the  state  keeps  a  permanent  paid  army  in  its  serv- 
ice, and  supplements  the  services  of  these  by  volunteers 
and  by  drafts  of  men  levied  from  districts  in  proportion 
to  population. 

States  in  times  of  stress  have  used  slaves  in  war  but 
always  under  protest,  fighting  being  considered  the  privi- 
lege and  the  duty  of  freemen.  Convicts  and  criminals 
occasionally  have  been  sentenced  to  serve  as  a  punish- 
ment, but  this  custom  is  now  condemned  as  derogatory 
to  the  service.  Occasionally  states  have  hired  foreign 
mercenaries  to  fight  in  their  wars,  but  this  custom  also 
is  no  longer  favored.  In  the  Great  War  imported  labor- 
ers, chiefly  from  Oriental  countries,  were  employed  be- 
hind the  battle  line  in  great  numbers  by  the  Entente 
Allies  so  as  to  allow  them  to  put  more  men  into  combat 
organizations. 

The  burden  of  supplying  ships  and  men  for  the  navy 
used  to  fall  on  seaport  communities  only;  gradually  a 
permanent  navy  developed,  supported  by  the  state  and 
supplemented  by  vessels  seized  or  bought  at  the  out- 
break of  war.  The  use  of  privateers  also  was  once  com- 
mon but  is  now  practically  condemned  by  all  leading 
nations.  Commercial  states  using  the  sea  support  large 
navies  so  as  to  protect  their  commerce  in  case  of  war. 
The  importance  of  "sea  power"  as  a  factor  in  world  su- 


THE  WAR  POWER  69 

premacy  has  become  fully  recognized  since  the  publica- 
tion of  the  late  Captain  A.  T.  Mahan's  great  book  on  that 
subject.4 

Positions  of  command  regularly  belong  in  old-fash- 
ioned systems  to  men  of  the  higher  social  classes,  with 
occasional  exceptions  in  the  case  of  men  of  decided  talent 
who  may  rise  from  the  ranks.  The  present  tendency  is 
to  make  all  positions  of  command  open  to  merit,  and  this 
system  holds  in  democratic  states.  The  training  of  men 
for  war  was  in  early  times  the  duty  of  the  older  ex- 
perienced warriors.  At  a  later  period  the  family  and  the 
community  respectively  trained  their  members.  At  the 
present  time  the  state  either  directly  trains  its  forces  or 
fixes  standards  and  supervises  administrative  districts  in 
the  performance  of  this  duty.  Scientific  technical  train- 
ing is  also  furnished  by  the  state  for  the  officers  of  the 
army  and  navy  and  vocational  training  given  to  many 
of  those  enlisted,  so  as  to  supply  skilled  workers  to  the 
many  branches  of  the  service. 

In  earlier  systems  armies  subsisted  by  foraging  or 
plundering  while  on  the  line  of  march.  Each  man  fur- 
nished his  own  equipment,  according  to  a  set  standard; 
the  wealth  of  a  person  determined  the  branch  of 
service  he  entered;  the  wealthier  served  in  the  cavalry  or 
in  the  heavy-armed  troops,  and  the  poorest  as  light- 
armed  troops.  The  expensiveness  of  modern  equipment 
and  the  great  size  of  armies  compel  states  to  furnish  all 
supplies  of  weapons,  equipment,  food,  medicines,  and 
other  necessaries.  So  important  has  the  supplying  and 
transportation  of  armed  forces  become  that  the  whole 
matter  has  become  a  special  study  under  the  name  of 

4  See  Alfred  T.  Mahan,  The  Influence  of  Sea  Power  upon  His- 
tory. 


70  THE  STATE  AND  GOVERNMENT 

Logistics.5  The  branch  of  service  entered  is  determined 
by  skill  and  choice.  The  science  of  war  has  become  so 
systematized  that  immense  sums  are  annually  expended 
in  the  building  of  military  roads  and  fortifications,  in  the 
accumulation  of  all  kinds  of  military  and  naval  stores 
and  in  recent  years  in  development  of  aerial  and  sub- 
marine services.  Naturally  there  is  a  definite  system  of 
rules  and  regulations  which  govern  the  military  and  naval 
forces  of  a  nation,  but  in  democratic  governments  these 
codes  are  sometimes  formulated  by  the  lawmaking  body 
so  as  to  render  the  armed  forces  of  the  nation  subordi- 
nate to  the  civil  department  of  government. 

Beginnings  of  Diplomacy. — In  earlier  political  life 
warring  communities  fought  until  the  one  or  the  other 
was  exterminated,  or  both  from  exhaustion  were  com- 
pelled to  desist.  Gradually  a  rude  method  of  negotiation 
grew  up  through  heralds,  whose  persons  while  in  the  per- 
formance of  their  duties  were  sacred.  Through  these, 
treaties  and  agreements  were  made  and  sanctioned  with 
much  ceremony  and  the  taking  of  oaths.  Even  in  very 
early  times  formal  treaties  were  made.  One  of  the 
earliest  extant  dates  back  to  the  thirteenth  century  B.  C., 
being  a  treaty  between  Rameses  II  and  the  Kheta,  or 
Hittites.6  In  the  Middle  Ages  began  the  custom  of  send- 
ing permanent  diplomatic  agents  to  the  courts  of  those 
nations  with  which  the  state  had  dealings ;  through  these 
much  information  was  secured  of  great  use  to  the  respec- 
tive states,  and  disputes  were  occasionally  settled  without 
war.  Then  began  consular  systems  whereby  each  state 
sends  business  agents  to  the  chief  business  centers  of 

6  See  book  with  that  title  by  Colonel  George  C.  Thorpe,  Section 
IV  of  the  Bibliography. 
0  Records  of  the  Past.    First  Series,  vol.  iv,  pp.  25-32. 


THE  WAR  POWER  71 

other  states,  usually  seaports,  and  through  these  secures 
information  of  great  value  for  commercial  interests. 
These  agents  also  transact  important  details  of  adminis- 
trative business  for  travelers  and  traders. 

Another  important  development  has  been  the  employ- 
ment of  Boards  of  Arbitration,  Joint  Commissions,  and 
The  Hague  Tribunal.  These  consider  such  matters  as 
may  be  referred  to  them,  hear  arguments  on  all  sides, 
and  settle  amicably  disputes  that  otherwise  would  fre- 
quently end  in  war.  The  Pan-American  Union  of  the 
Americas  and  the  present  League  of  Nations  are  prom- 
ising organizations,  aiming  to  avoid  war  by  stressing  the 
development  of  amicable  relations  among  states  and  the 
employment  of  methods  of  conciliation  and  arbitration 
in  cases  of  disagreement. 

International  Law. — In  Western  civilization  the 
customs  arising  from  this  international  intercourse  did 
not  attain  an  important  stage  until  the  sixteenth  century, 
when  the  development  of  national  states  and  greater  in- 
tercourse through  the  development  of  commerce  brought 
them  into  prominence.  Grotius  in  his  work,  De  Jure 
Belli  ac  Pads  7  first  systematized  these  customs  by  com- 
menting on  them  and  supplementing  them  from  principles 
of  Roman  and  natural  law.  Since  his  day  many  learned 
treatises  on  these  customs  and  principles  have  been  set 
forth,  resulting  in  a  fairly  well  defined  code  or  set  of 
rules  and  regulations  for  the  guidance  of  nations  in  their 
intercourse  one  with  the  other.  These  are  not  law  in 
the  sense  that  they  are  customs,  regulations,  or  com- 
mands enforced  by  a  supreme  sovereign  authority. 
Though  called  international  law,  the  term  should  be  un- 
derstood in  the  sense  that  the  code  is  a  collection  of 
1  First  published  in  1625. 


72  THE  STATE  AND  GOVERNMENT 

customs  observed  by  the  greater  states  in  their  dealings 
with  one  another.  No  state  is  legally  bound  to  obey 
these,  unless  they  become  by  adoption  part  of  the  law  of 
the  land,8  but  states  for  expediency's  sake  usually  con- 
form to  them,  though  they  do  not  hesitate  to  disregard 
or  alter  them  in  certain  particulars  if  it  seems  wise.  In- 
ternational congresses  also  meet  from  time  to  time  so  as 
to  declare  adherence  to  principles  agreed  upon,  such  as 
the  Congress  of  London  (1908)  or  to  formulate  common 
policies  and  understandings,  such  as  the  Pan-American 
Congresses,  or  the  Congresses  that  meet  at  the  close  of 
great  wars  so  as  to  readjust  international  relations,  such 
as  the  Congress  of  Paris  (1919). 

Policy  towards  the  Conquered. — The  early  method 
of  disposing  of  conquered  communities  was  that  af 
devastation.  Torture  and  death  were  the  fate  of  the 
males,  slavery  the  lot  of  the  women  and  children.  At  a 
later  stage,  after  a  slaughter  of  the  contumacious,  the 
remaining  members  of  the  conquered  community  were 
enslaved  and  kept  permanently  in  social  subordination. 
A  third  stage  came  when  the  conquered  community  was 
compelled  to  pay  tribute  to  the  conqueror,  and  to  submit 
to  his  supremacy  in  governmental  matters,  but  otherwise 
was  allowed  to  retain  its  freedom  and  peculiar  customs.9 
The  policy  of  the  maritime  state  of  Athens  towards  its 
defeated  commercial  rivals  was,  after  a  partial  massacre 
and  devastation,  to  seize  their  fleets  and  to  levy  annual 
indemnities.  At  the  present  time  in  wars  between  civi- 

8  The  German  Constitution  of  1919  (Article  iv)  reads,  "The  gen- 
erally recognized  principles  of  the  law  of  nations  are  accepted  as  an 
integral  part  of  the  law  of  the  German  commonwealth." 

8  See,  for  example,  W.  T.  Arnold,  Roman  System  of  Provincial 
Administration,  London,  1879.  Caesar's  Wars  and  Thucydides' 
Peloponnesian  War  furnish  many  illustrations  of  early  methods. 


THE  WAR  POWER  73 

lized  states,  the  conqueror  usually  imposes  on  the  con- 
quered a  heavy  tax  for  war  expenses,  or  indemnity, 
makes  stipulations  in  regard  to  the  causes  of  the  war, 
and  may  demand  a  cession  of  territory  or  colonies.  The 
war  of  1914-8  resulted  in  a  vigorous  revival  of  the 
principle  of  nationality  which  has  obtained  in  Western 
civilization  since  the  sixteenth  century.10 

Dominant  Races. — On  the  other  hand,  the  theory 
of  * 'dominant  races"  has  never  lacked  for  advocates. 
This  theory,  plainly  stated,  is  that  any  powerful  state 
may  by  open  conquest  or  skillful  diplomacy  subdue 
weaker  and  inferior  races  and  states  and  compel  them  to 
assimilate  their  customs  to  those  of  the  ruling  state.  A 
war  for  pure  aggrandizement  probably  would  not  be  tol- 
erated by  other  great  powers,  but  a  dominant  state  sel- 
dom lacks  an  excuse  for  aggression.  The  attack  of 
Germany  on  Belgium  and  France  was  justified  by  Ger- 
man advocates  of  "world  politics"  but  brought  into  the 
conflict  ultimately  practically  all  the  states  of  the  world 
on  one  side  or  the  other. 

Race  Conflict. — Along  with  the  theory  of  dominant 
races  goes  the  theory  of  racial  conflict.11  Gumplowicz 
gave  this  theory  its  modern  form,  arguing  that  social 
and  national  progress  depends  on  the  struggle  of  races 
for  supremacy.  The  conqueror  imposes  his  will  on  the 
conquered  and  in  due  time  through  the  processes  of 
amalgamation  and  assimilation  the  two  become  blended 
into  a  new  nationality.  A  weaker  community  which  can- 
not or  will  not  become  assimilated  disappears.  As  a 

10  See  page  39. 

"This  theory  has  been  best  worked  out  by  Ludwig  Gumplowicz, 
Der  Rassenkampf  and  Grundriss  der  Sociologie.  This  latter  volume 
has  been  translated  by  F.  W.  Moore,  Annals  of  the  American 
Academy  of  Political  and  Social  Science,  1899. 


74  THE  STATE  AND  GOVERNMENT 

rule  if  the  conquered  community  is  equal  in  quality  to 
the  conqueror,  assimilation  takes  place  at  last,  though 
with  much  bitterness  and  rancor.  If  such  a  community 
is  inferior  in  quality,  yet  such  that  it  can  be  utilized  in 
economic  life,  it  survives  because  of  its  industrial  value 
and  may  perhaps  very  slowly  amalgamate  with  the  con- 
quering race.  If  such  a  community  proves  to  be  socially 
inferior  and  economically  useless,  its  members  slowly 
disappear,  wasted  by  contact  with  a  superior  civilization 
whose  vices  and  diseases  find  ready  lodgment  in  a  popu- 
lation that  has  lost  its  self-respect  and  its  reason  for 
existence.  This  process  of  conquest  and  assimilation, 
harsh  and  cruel  though  it  be,  has  nevertheless  been  in  the 
past  one  of  the  greatest  factors  in  civilization.  A  race 
developing  only  through  natural  increase  tends  to  lose 
energy  and  vitality  by  inbreeding.  Conquest  involves 
more  or  less  intermarriage  between  the  conquerors  and 
the  conquered  and  a  slow  process  of  amalgamation  takes 
place.  From  this  crossing  of  blood  and  mingling  of 
civilizations  a  new  generation  ultimately  arises,  stronger 
and  wiser  than  either  of  its  parent  stocks.  Every  im- 
portant face  surviving  to-day  must  in  its  history  have 
been  repeatedly  subject  to  processes  of  amalgamation. 
Peaceful  amalgamation  is  prominent  to-day  through  im- 
migration. The  racial  safeguard  in  amalgamation  is 
that  a  superior  race  seldom  amalgamates  with  a  race 
much  inferior  to  itself.  Extinction,  not  absorption,  is 
the  ultimate  fate  of  the  latter. 

A  World  Federation. — The  rapid  development  of 
international  comity  in  modern  times  down  to  the  year 
1914,  brought  into  discussion  the  question  of  the  future 
probability  of  a  world  state,  a  world  federation.  It 
seemed  at  that  time  undeniable  that  such  a  consummation 


THE  WAR  POWER  75 

was  within  the  range  of  possibility.  Development  along 
such  lines  was  already  manifest,  as  illustrated  (i)  by 
the  growing  identity  of  social  and  economic  interests 
brought  about  by  constant  intercourse  through  modern 
inventions,  (2)  by  the  development  of  international  law, 
comity,  and  arbitration,  (3)  by  the  development  of  com- 
mon administration  in  such  matters  as  postal  service, 
(4)  by  the  practical  supremacy  of  four  or  five  leading 
states  over  the  world's  territory  and  (5)  by  the  growing 
humanitarianism  of  the  age.  All  these  seemingly  pointed 
to  a  peaceable  union  of  the  human  race  under  the  su- 
premacy of  a  developing  confederation  of  leading  states. 

The  Great  War  seemingly  plunged  the  world  back  into 
an  intense  racial  struggle  for  survival  and  intensified 
racial  hatreds.  It  also  brought  in  its  train  at  the  signing 
of  the  Armistice  vigorous  readjustments  of  governmen- 
tal organization,  not  among  the  Central  Powers  only 
but  among  the  Allies  also.  National  boundaries  were 
readjusted  and  new  states  formed  on  the  basis  of  na- 
tionality. 

A  League  of  Nations  has  been  organized,  excluding 
the  Central  Powers  for  the  present,  and  this  in  due  time 
should  accomplish  much  in  removing  causes  of  friction 
in  the  Eastern  Hemisphere.  On  the  other  hand  it  is 
questionable  whether  the  great  nations  can  agree  to  di- 
vide the  world's  supremacy  among  them  in  an  amicable 
manner.  It  may  be  that  the  tendencies  which  make  for 
peace  will  develop  a  peaceable  confederation,  or  the  sub- 
mission of  the  rest  to  the  hegemony  of  one,  but  the 
probabilities  hardly  point  in  that  direction.  Western 
civilization  is  characterized  by  a  fierce,  warlike,  competi- 
tive spirit  that  brooks  no  rivals  in  a  contest  for  economic 
supremacy.  The  enormous  cost  ot  war  and  the  terrible 


76  THE  STATE  AND  GOVERNMENT 

loss  of  life  involved  in  modern  struggles  are  deterrent 
factors,  but  these  sink  away  when  the  lust  for  gain  and 
warring  seizes  by  contagion  entire  nations. 

A  world  state  or  federation  would  be  strong  only  as 
its  members  were  homogeneous  in  civilization  and  fairly 
well  amalgamated  in  blood.  When  one  reflects  that  by 
far  the  larger  part  of  humanity  live  under  backward  civi- 
lizations and  in  tropical  or  semitropical  lands,  it  becomes 
evident  that  amalgamation  by  blood  would  demand  not 
centuries  but  thousands  of  years,  and  that  a  blending  of 
such  dissimilar  civilizations  is  hardly  possible.  If,  how- 
ever, dominant  states  should  hold  such  populations  as 
mandataries,  as  England,  for  example,  does  India,  and 
develop  them  in  civilization  as  rapidly  as  possible,  a  firm 
and  lasting  unity  might  be  secured  that  ultimately  would 
become  democratic.  It  may  be  that  the  future  has  some 
such  solution  in  store  for  humanity.  If  so,  then  the 
dream  of  many  Utopians  may  be  realized,  and  humanity 
guided  by  a  world  policy  may  systematically  utilize  social 
agencies  for  the  highest  possible  development  of  the 
human  race.  Indications  along  such  lines  will  be  much 
clearer  by  the  end  of  the  twentieth  century,  for  civiliza- 
tion having  passed  round  the  world  is  centering  its  ener- 
gies in  the  Western  Hemisphere  and  in  the  Far  East. 
The  lands  bordering  on  the  Pacific  will  grow  in  impor- 
tance during  this  century,  and  by  the  end  of  it  the  dense 
populations  of  China  and  India  will  probably  have  found 
their  place  in  the  politics  of  the  modern  world. 


CHAPTER  VI 
INTERNAL  PEACE,  FAMILY,  AND  CHURCH 

INTERNAL  PEACE 

Social  Regulation  of  Crime. — As  the  primary  func- 
tion of  the  state  is  the  protection  of  the  lives  and  prop- 
erty of  the  community  through  war,  it  is  not  strange  that 
a  similar  function  in  internal  affairs  should  develop. 
Attention  has  already  been  called  *  to  this  necessity  in 
connection  with  the  suppression  of  subjugated  races 
under  the  jurisdiction  of  the  state,  but  in  other  respects 
state  authority  grew  much  more  slowly.  Long  before 
the  state  existed  men  had  protected  themselves  and  still 
felt  abundantly  able  to  do  so  in  ordinary  emergencies. 
In  all  civilizations,  groups  of  men  are  found  united  in 
bonds  of  real  or  fictitious  kinship  for  purposes  of  joint 
protection.2  How  natural  this  has  become  is  seen  at  a 
glance  by  observing  the  numerous  fraternal  orders  of 
developed  civilization.  These  groups  in  early  civilization 
were  united  for  purposes  of  blood  revenge,  fine  pay- 
ments, and  mutual  responsibility.  The  patriarchal  fam- 
ily at  a  later  stage  answered  the  same  purpose.  The 
loosening  of  patriarchal  family  ties  through  commerce 
and  industry  brought  about  in  city  life  the  development 
of  the  guild,  the  guild  for  social  and  religious  purposes, 

1  page  4. 

*  For  illustrations,  see  Hutton  Webster,  Primitive  Secret  Socie- 
ties. 


78  THE  STATE  AND  GOVERNMENT 

the  trades  guild,  the  merchant  guild,  and  akin  to  these 
the  orders  of  knighthood  and  the  brotherhoods  of  the 
church.3  Such  associations,  found  in  all  civilizations  and 
in  all  times  and  places,  devoted  themselves  to  the  preser- 
vation of  the  peace  by  restraints  placed  on  individual 
members,  by  discipline  inflicted  on  disturbers  of  the 
peace,  and  by  presenting  a  united  front  against  aggres- 
sions of  unruly  members  of  the  community. 

Outlawry. — But  besides  associations  for  the  pres- 
ervation of  the  peace  there  were  others  organized  for 
opposite  purposes,  associations  composed  of  outlaws, 
robbers,  criminals  who  had  fled  from  home,  men  owning 
no  master,  worthless  fellows  for  whom  no  one  would  be 
responsible.4  Against  such  the  united  strength  of  the 
entire  community  was  necessary.  The  state  therefore 
developed  the  function  of  unifying  the  force  of  the  com- 
munity against  armed  associations  of  lawless  men  within 
its  own  borders.  Similarly,  armed  resistance  to  the  laws 
of  the  community  in  the  form  of  rebellions,  insurrections, 
and  riots,  was  suppressed  through  the  power  and  strength 
of  the  state.  In  this  way  developed  the  right  of  the  state 
to  suppress  such  disturbances  with  a  strong  hand,  if 
necessary  suspending  civil  law  for  the  time  and  exercis- 
ing arbitrary  war  powers. 

Minor  Breaches  of  the  Peace. — Ordinary  breaches 
of  the  peace  5  long  remained  outside  the  jurisdiction  of 
the  state,  and  even  now  some  offenses  against  the  peace 
are  popularly  considered  matters  to  be  settled  personally, 
such  as  offenses  against  honor,  chastity,  reputation,  and 

*  For  special  studies  of  Oriental  guilds  see  articles  in  the  Yale 
Review,  vol.  ix,  pp.  200  and  275,  F.  W.  Williams,  "Chinese  and 
Mediaeval  Gilds";  and  vol.  vii,  pp.  24  and  197,  W.  E.  Hopkins, 
"Ancient  and  Modern  Hindu  Gilds." 

4  See,  for  example,  the  Cave  of  Adullam,  I  Samuel  xxii,  2. 

5  See  page  3. 


INTERNAL  PEACE  79 

the  person.  Certain  social  associations  or  institutions 
are  still  accustomed  to  exercise  slight  powers  of  disci- 
pline over  their  membership,  as,  for  instance,  the  family, 
the  school,  and  the  church.  There  are  many  survivals 
of  private  vengeance  such  as  the  fisticuff  brawl  of  humble 
life,  the  well-nigh  obsolete  duel  of  socially  higher  classes, 
the  use  of  lynch  law  administered  by  outraged  individuals 
of  communities,  Ku-Klux  organizations,  and  the  feuds 
still  so  common  in  backward  countries  or  semipatri- 
archal  communities.  All  such  offenses  were  once  legally 
avenged  by  the  persons  offended,  supported  by  the  kins- 
men of  the  fraternity  or  family.  If  one  slew  another, 
the  friends  of  the  murdered  man  slew  the  murderer  or 
one  of  his  kin.  If  injury  less  than  life  was  inflicted, 
similar  injuries  were  given  in  retaliation.  This  lex 
talionis,  or  principle  of  eye  for  eye,  tooth  for  tooth,  had 
one  extremely  inconvenient  consequence;  it  was  likely 
to  develop  into  a  blood  feud.  Blood  feuds  kept  the  whole 
community  in  turmoil,  besides  robbing  the  state  of  many 
of  its  best  righting  men.  Under  such  conditions  the  state 
assumed  the  office  of  umpire,  examined  the  facts  in  the 
case,  turned  over  the  guilty  person  to  his  prosecutors  for 
punishment,  and  forbade  the  friends  of  the  convicted 
person  to  carry  the  matter  further.  These,  debarred 
from  the  privilege  of  avenging  their  kinsman,  sought 
the  privilege  of  redeeming  his  life  by  payments.  Such 
a  compromise  in  most  cases  proved  eminently  satisfac- 
tory to  all  parties.  Better  pay  a  fine  than  lose  a  friend, 
and  on  the  other  hand  a  fine  received  is  some  compen- 
sation for  the  loss  of  a  friend,  and  perhaps  more  satis- 
factory than  blood  revenge.  The  state  was  also  satisfied, 
by  this  arrangement,  because  men  that  kill  in  fight  make 
good  soldiers  in  war,  and  war  material  of  that  sort  was 


8o  THE  STATE  AND  GOVERNMENT 

too  valuable  to  waste  through  useless  bloodshedding  in 
private  feuds. 

The  Fine  System. — In  some  such  way  developed  a 
system  of  fines  graded  for  almost  every  possible  offense 
against  the  person,  from  a  life  to  a  tooth  or  a  lock  of 
hair,  and  varying  in  amount  with  the  social  standing  of 
the  person  assaulted.6  These  fines  were  paid  to  the  in- 
jured person,  or  to  his  kin  or  fraternity,  but  the  state 
reserved  a  fraction  of  the  fine  for  its  services  as  umpire. 
The  income  from  such  fines  proved  so  remunerative  to 
the  state  that  there  was  a  constant  tendency  to  usurp 
the  function  of  the  prosecutor,  whose  business  it  was 
to  present  the  criminal  for  trial,  and  to  claim  an  increas- 
ing share  of  the  fines.  The  matter  was  settled  at  last 
by  the  state's  assumption  of  the  entire  matter.  When 
a  crime  takes  place,  the  state  arrests  the  accused,  makes 
all  investigations,  prosecutes  the  case,  inflicts  the  punish- 
ment, and  collects  the  whole  of  the  fine.  The  early 
pecuniary  motive  of  the  state  has,  however,  overreached 
itself,  for,  in  the  development  of  punitive  law,  other 
forms  of  punishment,  such  as  imprisonment,  have  been 
substituted  for  fines  in  many  offenses,  and  the  income  of 
the  state  has  correspondingly  diminished,  while  the  ex- 
pense of  administering  punishment  has  enormously 
increased.  Neither  the  injured  person  nor  his  kin  now 
share  in  the  fine,  but  merely  have  the  doubtful  satisfac- 
tion of  seeing  punishment  inflicted  on  the  offender.  By 
theory  a  civil  process  for  damages  is  possible,  but  in 
practice,  useless.  There  are  movements  in  some  coun- 
tries looking  to  the  enactment  of  a  law  requiring  the 
state  to  indemnify  the  injured  person  or  his  kin,  on  the 

•For  a  good  illustration  of  such  a  system,  see  John  M.  Stearns, 
Germs  and  Development  of  the  Laws  of  England,  New  York,  1889. 


INTERNAL  PEACE  81 

theory  that  the  state  agrees  to  preserve  the  peace,  and  if 
it  fails  to  do  so  in  any  case,  it  should  pay  a  penalty  for 
its  neglect.7 

Methods  of  Trial. — The  state  in  the  development  of 
its  functions  of  arbitration  and  punishment,  has  tried 
many  curious  experiments.8  The  city  of  refuge  repre- 
sents an  attempt  to  distinguish  between  intentional  and 
unintentional  murder.  The  use  of  the  sanctuary  is  a 
device  for  the  prevention  of  punishment  inflicted  with- 
out proper  consideration  and  trial.  The  ordeal  and  the 
judicial  combat  endeavored  to  throw  the  responsibility 
for  the  decision  on  God.  The  system  of  compurgation 
allowed  the  state  to  decide  prudently  on  the  side  that 
could  present  more  able-bodied  men  ready  to  swear  to 
anything  to  help  out  a  friend  (a  system  not  unknown  at 
this  day).  Torture  was  regularly  applied  on  the  theory 
that  a  man  in  great  pain  will  tell  the  truth.  Finally, 
excessively  cruel  and  hideous  forms  of  death  were  in- 
flicted on  the  guilty  under  the  theory  that  others  would 
be  deterred  from  similar  offenses.  Such  systems  of 
punishment  now  survive  only  in  uncivilized  communities, 
and  the  modern  theory  of  penology  is  founded  on  humane 
principles. 

Crimes  against  Property. — A  similar  development 
of  state  authority  took  place  in  respect  to  offenses  against 
property.  For  a  long  period  theft  was  considered  to 
be  purely  a  private  matter  and  was  settled  by  methods 
of  retaliation.  The  injured  party  would  naturally  seek 
to  recover  from  the  offender  or  his  kin  more  than  he 
had  lost,  so  as  to  recompense  him  for  his  trouble.  This 
brought  about  bad  feeling,  righting,  and  occasional  loss 

'See,  for  example,  Ferri,  Criminal  Sociology,  Chapter  III. 
8  See,  for  illustrations,  Henry  C.  Lea,  Superstition  and  Force. 


82  THE  STATE  AND  GOVERNMENT 

of  life.  As  in  the  case  of  personal  violence,  the  state 
at  first  acted  as  umpire  and  settled  guilt  and  damages, 
taking  its  share  of  the  latter.  It  then  gradually  assumed 
entire  responsibility  in  the  matter,  and  now  merely  re- 
turns to  the  robbed  person  his  property  if  recovered. 

The  modern  state  in  exercising  its  jurisdiction  over 
crime  of  all  sorts  is  not  satisfied  merely  to  detect  and 
punish  the  offender,  but  seeks  to  prevent  the  commission 
of  crime  (i)  by  carefully  framing  and  publishing  the 
penal  law,  in  order  that  no  one  may  plead  as  an  excuse 
ignorance  of  the  law,  and  (2)  by  the  use  of  a  perma- 
nent police  force,  which  systematically  patrols  the  com- 
munity and  seeks  to  prevent  disorder  and  crime.  Even 
more  is  accomplished  in  this  direction  by  wise  systems  of 
education  and  economic  regulation  and  well-being. 

Civil  Disputes. — The  next  development  took  place 
when  the  state  undertook  to  arbitrate  in  civil  disputes. 
Disagreements  in  regard  to  property  rights  easily  lead 
on  to  acts  of  violence.  The  state,  therefore,  in  main- 
taining its  function  of  keeper  of  the  peace,  gradually 
assumed  jurisdiction  over  such  disputes  by  compelling 
the  contending  parties  to  plead  their  causes  before  its 
magistrate  and  to  submit  to  his  decision.  In  such  cases, 
however,  the  state  seldom  takes  the  initiative,  and  civil 
actions  are  still  in  form  disputes  between  persons,  while 
criminal  actions  are  in  form  charges  made  by  the  state 
itself  against  individuals. 

In  this  development  of  governmental  authority  the 
process  is  practically  uniform;  in  primitive  life  disputes 
of  all  sorts  are  settled  by  private  arrangements  of  the 
parties  concerned,  peaceably  or  violently,  according  to 
circumstances  or  the  nature  of  the  case.  Then  the  state 
from  motives  of  public  policy  assumes  the  office  of  vol- 


FAMILY  AND  STATE  83 

untary  umpire;  at  a  later  stage  it  enforces  with  the 
power  of  the  state  its  decisions,  and  finally  it  either  com- 
pels disputants  to  refer  their  grievances  to  its  courts, 
or  it  assumes  the  responsibility  of  personally  investigat- 
ing grievances  and  prosecuting  and  punishing  offenders. 
This  process  may  be  illustrated  by  the  modern  strike. 
This  is  in  form  a  private  dispute  between  an  employer 
and  his  employees  in  regard  to  the  wages  paid  and  the 
conditions  of  labor.  If  the  strike  should  become  so 
important  as  to  threaten  violence  or  serious  danger  to 
public  interests,  the  state  may  prohibit,  for  example, 
picketing,  or  may  suggest  the  use  of  a  board  of  arbitra- 
tion, as  was  done  in  the  coal  strike  of  1902  and  fre- 
quently since  in  mining  and  transportation  disputes.  At 
a  later  period  the  state  may  insist  that  such  disputes  be 
referred  to  a  board  of  arbitration  and,  finally,  may  then 
enforce  the  decision  of  the  board.9  In  matters  still  left 
for  private  settlement  the  state  may  organize,  as  is  so 
commonly  the  case,  courts  or  boards  of  arbitration  and 
conciliation,  the  use  of  which  may  be  voluntary  at  first, 
but  may  ultimately  be  made  compulsory  as  the  state 
extends  its  jurisdiction  over  all  disputes  that  threaten 
to  disturb  the  public  peace.10 

THE  FAMILY  IN  ITS  RELATION  TO  THE  STATE  n 

The      Metronymic      Family. — The      "patriarchal 
theory"  of  the  origin  of  the  state  was  considered  satis- 

0  As  to-day  in  parts  of  Australasia  and  Canada. 

10 The  use  of  the  injunction  in  labor  troubles  illustrates  this  ten- 
dency. The  injunction  is  an  order,  directed  to  those  who  are  sup- 
posed to  be  contemplating  overt  acts,  instructing  them  to  refrain 
from  doing  such.  The  danger  in  the  frequent  use  of  the  injunction 
lies  in  the  fact  that  disobedience  is  "contempt  of  court"  and  may 
be  punished  by  a  fiat  of  the  court,  without  trial. 

u  See  the  short  work  by  the  author,  The  Family  in  its  Sociological 
Aspects. 


84  THE  STATE  AND  GOVERNMENT 

factory  down  to  within  a  very  few  years.  It  assumed 
an  original  pair  of  human  beings,  multiplying  by  succes- 
sive generations  into  a  clan,  a  union  of  these  into  a  tribe, 
and  a  union  of  tribes  into  a  nation.  This  theory  of  late 
years  has  been  considerably  modified.  Researches  into 
the  origin  of  the  family  show  that  the  patriarchal  family 
came  quite  late  in  human  history  and  was  preceded  by 
a  metronymic  stage  in  which  the  father  played  a  rela- 
tively insignificant  part,  since  the  notion  of  paternity 
was  unknown. 

The  later  family  of  that  stage  is  frequently  known 
as  the  totem  family,  in  which  form  of  family  a  mother 
supported  her  own  children,  aided  by  her  uterine  brothers 
and  maternal  uncles.  These  would  rank  as  fathers 
(protectors)  and  grandfathers  to  the  children,  who  were 
not  considered  to  be  related  to  their  natural  father  nor 
to  his  children  by  other  wives.  Members  of  the  same 
totem  did  not  necessarily  live  in  the  same  horde-group. 
Each  group  might  contain  parts  of  several  totems.  A 
man  passing  from  group  to  group  might  probably  find 
totem  relations  in  all,  and  these  were  bound  together 
by  bonds  of  kinship  and  common  worship.  It  was  not 
the  totem  family  that  developed  into  the  nation  but  the 
horde,  or  group,  that  contained  parts  of  numerous 
totems. 

The  Patronymic  Family. — As  population  increased 
and  the  struggle  for  food  supplies  became  keener,  those 
neighboring  hordes  that  had  acquired  the  art  of  the 
domestication  of  animals  held  together  more  firmly  for 
purposes  of  self -protection.  As  men  came  to  under- 
stand the  possibilities  in  the  domestication  of  animals 
and  in  agriculture,  there  came  a  demand  for  slaves  and 
for  women  as  drudges  in  the  household.  Marriage  by 


FAMILY  AND  STATE  85 

capture  and  by  purchase  became  common,  and  wives  so 
obtained  were  the  property  of  the  husband's  family. 
Since  by  this  time  a  knowledge  of  paternity  had  become 
common,  the  male  asserted  his  right  to  his  children  and 
to  give  them  his  name,  so  that  the  metronymic  (mother- 
named)  family  slowly  became  patronymic  ('father- 
named).  As  a  man  of  importance  or  prowess  might 
easily  have  many  women  as  slaves  in  his  household, 
whose  children  by  theory  were  all  his,  irrespective  as  to 
whether  or  not  he  was  the  actual  father,  it  is  evident 
that  a  patriarchal  familia  meant  a  family  quite  differ- 
ent from  its  predecessor  or  from  the  modern  monog- 
amous family.  While  the  patriarchal  family  was  in 
process  of  formation,  the  members  of  the  horde-tribe, 
composed  of  several  totems,  through  intermarriage 
might  after  many  generations  truly  assert  in  a  general 
way  their  kinship  and  common  descent,  and  would  pro- 
ceed to  regulate  to  some  extent  the  degrees  of  kinship 
and  property  rights.  As  the  tribe  broke  up  into  smaller 
groups  devoted  to  pastoral  and  agricultural  occupations, 
these  groups  would  become  still  more  solidified  and  would 
grow  into  a  clearly  defined  kinship  group  (the  gens), 
tracing  descent  to  a  common  ancestor,  and  bound  to- 
gether by  close  ties  of  blood  and  common  ancestral  wor- 
ship. These  groups,  again,  might  fall  apart  into  yet 
smaller  groups  as  village  communal  life  developed,  which 
in  turn  would  be  made  up  of  families  approximating 
somewhat  to  the  modern  idea  of  a  natural  family. 

Several  matters  deserve  repetition  in  this  explanation 
of  family  development.  The  totem  family  itself  regu- 
lated kinship  rights,  settled  disputes,  and  acknowledged 
bonds  of  peculiar  obligation  among  its  own  members. 
The  embryo  nation,  the  horde,  had  no  control  over  the 


86  THE  STATE  AND  GOVERNMENT 

family  as  such;  it  controlled  individuals  only,  irrespec- 
tive of  totem,  who  happened  for  the  time  being  to  be 
enrolled  in  the  horde.  The  patriarchal  family  also  regu- 
lated its  own  kinship  rights  and  relationships  and  was 
responsible  for  the  conduct  of  its  members.  Its  fighting 
men  as  such  were  under  the  authority  of  the  horde-tribe 
which  represented  the  incipient  nation. 

Types  of  Family  Groups. — In  this  way  from  the 
totem  family  and  from  the  horde  developed  four  dis- 
tinct unities : 

1.  The  tribe,  considering  its  members  akin  through 
some  remote  or  fictitious  ancestor,  and  regulating  in  a 
general  way  kinship  rights  and  common  worship. 

2.  The  gens,  a  more  closely  related  part  of  the  tribe, 
having  a  common  ancestor  nearer  than  the  joint  reputed 
ancestor  of  all  the  gentes,  and  regulating  more  closely 
kinship  rights  and  uniting  in  the  worship  of  the  gentile 
ancestor. 

3.  The  clan,  a  part  of  the  gens,  dating  back  theoreti- 
cally for  at  least  four  generations  and  practically  identi- 
cal with  the  ancient  village  community. 

4.  The  patriarchal  family,  consisting  of  a  living  head, 
his  wives,  his  subordinate  kin,  his  immediate  descendants 
and  their  offspring,  and  his  slaves  of  both  sexes  and 
their  descendants. 

With  these  developments  agricultural  life  was  in  full 
swing,  the  authority  of  the  tribe  and  gens  was  relatively 
lessening  and  the  village  might  practically  be  considered 
a  state,  as  far  as  the  state  may  be  said  to  have  existed 
in  those  times.  In  this  case  the  sovereignty  of  the  state 
is  almost  the  same  as  the  authority  of  the  father,  a 
paternal  authority,  however,  very  different  from  that  of 
a  modern  family,  in  that  patriarchal  power  was  a  real 


FAMILY  AND  STATE  87 

authority  and  was  exerted  over  a  much  larger  group, 
composed  of  many  who  only  by  legal  fiction  could  be 
considered  as  related  to  him.  Unions  of  clans  typified 
by  the  gens,  and  of  gentes  typified  by  the  tribe,  should  in 
this  stage  be  considered  as  quasi-con  federations,  each 
union  not  having  in  itself  sovereignty  over  its  communi- 
ties, but  exercising  only  such  slight  powers  as  custom 
had  placed  in  its  hands. 

The  Family  and  the  State. — Obviously,  a  state  in 
the  modern  sense  could  develop  only  when  a  village  com- 
munity, or  a  loose  confederation  of  communities,  de- 
voting itself  to  commerce  and  industry,  became  urban 
and  national  in  type  and  translated  the  authority  of  the 
father  into  the  authority  of  a  ruler,  still  the  father 
of  the  people,  but  in  much  the  same  conventional  way  as 
the  millions  of  Russians  used  to  call  the  tsar  their  little 
father,  to  distinguish  him  from  the  Great  Father  of  all 
mankind.  As  this  stage  of  statehood  developed,  the  old 
patriarchal  family  slowly  passed  into  the  classic  Roman 
form,  making  a  distinction  between  the  immediate  natu- 
ral family  and  the  collection  of  slaves  and  servitors.  The 
classical  notion  of  patriarchal  family  in  its  fully  de- 
veloped form  is  best  illustrated  from  the  p atria  potestas 
of  the  Romans.  Each  head  of  the  family  enjoying  this 
power  had  a  voice  in  the  government  of  the  larger  com- 
munity; as  a  pater  he  was  supreme  over  his  own 
household  of  wife,  children,  and  their  descendants,  and 
was  lord,  or  dominus,  over  his  household  of  slaves  and 
retainers.  As  the  notion  of  res  publica  developed,  pri- 
vate interests  became  more  and  more  subordinated  to 
the  state,  which,  through  a  collective  body  of  the  most 
eminent  patres  in  the  community  (the  senatus),  gradu- 
ally extended  its  authority.  This  authority  slowly  ceased 


88  THE  STATE  AND  GOVERNMENT 

to  be  familial,  becoming  governmental  instead,  and 
assumed  jurisdiction  over  the  disposition  of  family  prop- 
erty at  the  death  of  its  head.  It  regulated  succession, 
the  testament  or  will,  kinship  rights  and  responsibilities, 
and  inflicted  punishment  for  debt  or  crime  when  public 
policy  seemed  to  demand  it.  Increasing  emphasis  was 
placed  on  the  rights  of  the  natural  as  against  the  arti- 
ficial family  of  the  patriarchal  system,  and  in  later 
centuries  as  humanitarian  ideas  crept  in  through  the 
influence  of  Stoicism  and  Christianity  the  status  and 
treatment  of  slaves  were  improved. 

The  Modern  Family. — Though  many  survivals  of  the 
patriarchal  system  persisted  for  centuries  after  the  be- 
ginning of  the  Christian  era,  yet  Christian  domestic 
ideals  and  Germanic  customs  slowly  brought  about 
changes  that  ushered  in  the  monogamous  family  of  mod- 
ern times  tracing  descent  through  both  parents.  The 
church  for  a  time12  almost  supplanted  the  state  in  its 
regulation  of  the  family,  and  had  jurisdiction  over  mar- 
riage and  divorce,  testaments,  kinship,  education,  and 
morals.  The  rise  of  the  modern  state,  brought  about  by 
changes  in  economic  conditions  and  increase  of  general 
intelligence,  deprived  the  church  of  many  of  its  powers 
and  especially  freed  the  family  from  ecclesiastical  con- 
trol by  the  state's  gradual  assumption  of  those  regula- 
tive functions  formerly  exercised  by  the  church. 
Marriage  has  become  civil,  divorce  is  granted,  if  at  all, 
by  the  courts  or  by  lawmaking  bodies,  kinship  rights  and 
the  will  are  regulated  by  law,  education  is  secular,  usually 
compulsory,  and  largely  supported  by  the  state,  which 
also  acts  in  loco  parentis  in  case  of  parental  neglect,  or 

"In  late  mediaeval  centuries.  See  the  author's  The  Family  in 
its  Sociological  Aspects,  Chapters  V  and  VI. 


CHURCH  AND  STATE  89 

incompetency,  or  of  complete  orphanage.  In  other 
words,  the  family  once  anterior  to,  and  independent  of, 
the  state,  has  gradually  become  by  theory  entirely  sub- 
ject to  the  supremacy  of  the  state,  which  would  not 
hesitate,  if  public  policy  seemed  to  demand  it,  to  regulate 
the  domestic  institutions  as  fully  and  as  effectively  as  it 
does  economic  institutions. 

THE  RELATION  OF  CHURCH  AND  STATE 

Totemism. — The  influence  of  the  state  in  matters 
religious  presents  a  curious  line  of  development.  Any 
permanent  phase  of  human  activity  will  embody  itself 
in  a  social  institution,  and  the  church,  using  the  word  in 
its  generic  sense,  is  the  institution  through  which  re- 
ligious activity  formally  expresses  itself.  In  the  later 
animistic  stage,  religion,  if  that  term  may  be  applied 
to  savage  notions  of  the  supernatural,  found  its  best 
expression  in  totemism.  The  older  men  of  the  totem 
represented  the  authority  of  the  church.  They  regulated 
totem  relationship  with  its  system  of  rights  and  obliga- 
tions, instructed  and  initiated  the  youth  into  the  mys- 
teries of  the  worship,  interpreted  the  meaning  of  the 
supernatural  and  sought  as  medicine  men  and  conjurers 
to  heal  the  physical  and  mental  diseases  of  the  people. 
Such  a  function  contains  in  essence  all  that  the  church 
strove  to  become  in  later  ages,  and  its  early  importance 
as  a  civilizing  factor  can  hardly  be  overestimated.13 

With  the  development  of  patriarchal  society  totemism 
disappeared  and  in  its  place  came  nature  and  ancestor 

"For  excellent  studies  of  this  type  of  society,  see  Spencer  and 
Gillen,  The  Native  Tribes  of  Central  Australia,  London,  1899;  J.  G. 
Frazier,  The  Golden  Bough,  3rd  edition,  10  vols.,  London,  1907-13; 
R.  H.  Lowie,  Primitive  Society,  1920. 


90  THE  STATE  AND  GOVERNMENT 

worship.  The  formal  part  of  worship  now  became  the 
prerogative  of  heads  of  families,  as  far  as  ancestral 
deities  were  concerned,  but  side  by  side  with  these  arose 
a  system  of  nature  worship,  partly  a  matter  of  common 
superstition  and  partly  a  cult  with  a  definite  priesthood. 
Supplementing  these  systems  were  seers,  soothsayers, 
magicians,  and  necromancers,  who  claimed  a  more  prac- 
tical and  larger  knowledge  of  supernatural  beings  than 
the  more  formal  priesthood.  The  combined  influence 
of  these  several  priestly  classes  was  overwhelming.  The 
entire  life  of  the  community  was  dominated  by  them, 
and  men  became  through  social  pressure  religious  in 
thought  and  action. 

Ancestor  Worship. — The  maturity  of  the  patri- 
archal system  marks  the  height  of  this  influence. 
During  this  period  church  and  state  were  for  all  prac- 
tical purposes  one  in  aim  and  in  spirit.  Rulers  were 
themselves  priests  and  exercised  priestly  functions.14 
Both  institutions  were  conservative,  loved  stability,  and 
taught  submission  to  authority.  The  church  deified  the 
ruler  either  as  himself  a  god  or  God's  representative, 
exalted  his  priestly  authority,  educated  his  nobles  to 
obedience,  and  kept  the  masses  submissive  by  declaring 
rebellion  to  be  impious.  Consequently,  the  priesthood 
became  a  separate  class,  a  social  hierarchy,  having  large 
possessions  of  land,  wealtK,  and  special  privileges,  and 
exercised  an  authority  hardly  second  to  that  of  the  throne 
itself.  Its  leaders  were  the  trusted  advisers  and  assist- 
ants of  the  king.  It  had  charge  of  higher  education  and 
instructed  aspiring  youth  in  medicine,  sanitation,  the 
known  sciences,  statecraft,  and  divine  wisdom.  It  regu- 

14  See  for  illustration  Solomon's  dedication  of  the  temple  as 
narrated  in  II  Chronicles,  v-vii  inclusive. 


CHURCH  AND  STATE  91 

lated  the  morals  of  the  people,  condemning  or  approving 
social  customs,  and  punishing  infringements  of  its 
standards.  It  inculcated  the  virtues  of  hospitality, 
charity,  and  kindness  toward  the  lowly.  It  sanctioned 
wholesome  amusements  and  participated  in  them,  devel- 
oping for  its  own  purposes  the  rhythm  of  the  song  and 
the  dance,  as  well  as  the  stately  march  of  the  procession 
and  the  use  of  musical  instruments.  Its  connection  with 
family  worship  gave  it  influence  there  also,  and  through 
its  conservative  attitude  and  educational  power  it  was 
able  to  solidify  into  a  static  civilization  the  slowly  de- 
veloping forces  of  the  patriarchal  period. 

The  Rift  between  Church  and  State. — But  this 
harmony  of  church  and  state  was  sometimes  rudely  dis- 
turbed. The  prophetic  or  inspirational  side  of  religion, 
voiced  by  the  seer  and  by  the  religious  reformer,  was 
not  infrequently  in  opposition  to  the  status  quo,  and 
denounced  both  ruler  and  priest  for  their  shortcomings. 
Then,  too,  as  patriarchal  states  passed  into  the  age  of 
commercialism,  the  spirit  of  the  newer  age  fought  against 
the  existing  system.  As  intercourse  with  other  countries 
developed,  there  came  a  knowledge  of  foreign  divinities ; 
worshipers  of  these  resided  within  the  borders  of  the 
state,  and  in  many  cases  the  worship  itself  was  en- 
couraged and  sanctioned.  New  influences  and  broader 
knowledge  tended  to  destroy  unquestioning  belief  in  the 
older  system,  and  material  progress  demanded  liberalism 
in  state  policy.  Competition  of  religious  ideas  and  sys- 
tems and  philosophizing  slowly  sapped  beliefs  in  national 
and  local  gods.  Even  though  the  forms  of  worship 
survived,  confidence  in  religious  teaching  and  the  efficacy 
of  worship  disappeared.  For  the  ecclesiastical  organiza- 
tion, as  a  rule,  is  slow  to  adapt  its  teachings  to  the  chang- 


92  THE  STATE  AND  GOVERNMENT 

ing  conditions  of  the  age,  its  priesthood  is  a  class  apart 
and  sees  the  signs  of  the  times  by  refracted  light.  It 
is  inherently  conservative  and  tends  to  emphasize  the 
permanent  and  accepted  features  of  life  but  not  to  under- 
stand the  volcanic  energy  pent  up  and  seeking  expres- 
sion. For  such  reasons  it  regularly  fails  to  adapt  itself 
readily  to  the  newer  environment,  loses  its  power  in 
consequence  and  then,  after  slow  readjustments,  tends  to 
regain  part  of  the  influence  lost. 

At  such  crises  the  truer  interests  of  society  may  de- 
mand that  the  state  supersede  the  church  in  many  of 
its  activities.  The  state,  in  so  doing,  realizing  the 
authority  and  prestige  of  the  church  over  the  minds  and 
hearts  of  men,  may  continue  to  allow  it  large  powers 
and  wealth,  but  by  regulation  of  its  organization  and 
teachings  makes  it  a  useful  ally  rather  than  a  rival  for 
supremacy.  It  may,  however,  go  farther  than  this;  by 
depriving  it  of  countenance  and  financial  support,  it  may 
thereby  thrust  it  into  competition  with  other  social  insti- 
tutions, making  it  dependent  for  support  on  popular 
favor  and  approval.  The  period  of  the  Renaissance 
illustrates  this.  When  the  theological  tendencies  of  the 
church  became  iron  bands  restrictive  of  the  growing  life 
within,  the  state  burst  these  asunder  and  encouraged 
science,  invention,  philosophy,  and  secular  education.  It 
also  ignored  ecclesiastical  teachings  in  respect  to  charity, 
crime,  insanity,  intemperance,  and  such  social  ethical 
questions,  and  sought  to  solve  these  problems  by  scientific 
investigation  rather  than  by  theological  dogmatism.  The 
result  is  that  the  church  is  no  longer  looked  on  as  the 
final  authority  in  such  matters;  the  state,  rather,  making 
use  of  the  teachings  of  science  ami  sociology,  has  be- 
come the  authority  in  fixing  moral  standards. 


CHURCH  AND  STATE  93 

On  the  other  hand  the  church  in  adversity  may  turn 
away  from  the  material  aspect  of  ecclesiasticism  and 
catch  glimpses  of  a  world  mission,  a  world  empire  dom- 
inated by  religious  ideals.  The  inspiration  of  such  an 
ideal  might  even  carry  the  church  to  victory  against  the 
state  and  render  its  government  theocratic.  Such 
struggles  of  church  and  state  have  been  common  and 
victory  has  passed  from  one  to  the  other.  Sometimes, 
as  in  the  struggles  of  church  and  state  in  mediaeval  and 
modern  times,  a  truce  has  been  declared  and  the  respec- 
tive powers  of  each  'defined,  as,  for  example,  in  the 
concordats  so  common  in  the  history  of  the  Roman 
Catholic  Church.  Broadly  speaking,  however,  whenever 
a  state  passes  into  commercial-manufacturing  life,  it 
tends  to  emancipate  itself  from  sacerdotal  authority  and 
to  favor  a  more  or  less  complete  separation  of  church 
and  state.  A  separation  of  church  and  state,  however, 
does  not  imply  an  absolute  separation.  The  church  as  a 
social  and  property-holding  institution  is  still  subordi- 
nated to  the  state,  but  it  is  left  free  to  regulate  its  own 
life  and  religious  practices. 

Separation  of  Church  and  State. — There  seem  to  be 
four  well-defined  stages  in  the  accomplishment  of  this 
object : 

1.  The  state  and  church  separate  in  organization,  per- 
sonnel, and  function,  but  work  in  harmony,  as  in  Russia 
under  the  tsars. 

2.  The  state  subordinates  the  church  so  effectively  that 
it  becomes  virtually  a  department  of  governmental  ad- 
ministration, dominated  by  the  ruler  and  his  ministers. 
This  was  practically  the  situation  in  several  of  the  states 
of  Germany  under  the  Empire. 

3.  The  church  frees  itself  from  governmental  control 


94  THE  STATE  AND  GOVERNMENT 

in  spiritual  matters,  but  is  financially  chiefly  supported 
by  the  state.  France  in  the  latter  part  of  the  nineteenth 
century  illustrates  this  system. 

4.  The  church  becomes  separate  from  the  state  and  is 
no  longer  supported  from  public  funds.  This  "separa- 
tion of  church  and  state"  may  have  a  friendly  aspect,  as 
in  the  United  States  of  America,  or  a  vindictive  one,  as 
in  Mexico  during  the  last  fifty  or  sixty  years. 

Passing  of  Religious  Functions  to  the  State. — As 
already  indicated,  the  church  in  conflict  with  the  state 
lost  many  of  its  historic  functions.  As  long  as  it  was 
in  sympathy  with  the  state  and  was  supported  by  it,  it 
mattered  little  which  institution  performed  social  service. 
But  as  the  two  drew  apart  and  public  financial  support 
was  supplied  more  sparingly  or  withdrawn  altogether, 
it  became  important  from  the  state's  standpoint  that  it, 
rather  than  the  church,  should  perform  functions  so 
essential  to  national  welfare.  Financial  weakness  also 
made  the  church  less  able  to  perform  her  accustomed 
functions.  Slowly  but  surely,  therefore,  one  power  after 
another  passed  from  the  church  to  the  other  social  insti- 
tutions or  to  the  state:  charity,  medicine,  amusements, 
scientific  investigation,  philosophy,  education,  domestic 
regulation,  and  morals.  This  change  has  come  more 
fully  in  some  states  than  in  others,  but  broadly  speaking 
the  power  of  the  modern  church  tends  to  confine  itself 
to  devotional  and  spiritual  lines  only,  and  other  functions 
are  passing  from  its  control.  The  churches  may  still 
advance  theories  of  disease  and  healing,  or  scientific  and 
philosophic  speculations,  and  may  seek  to  regulate  for 
their  members  amusements,  morals,  domestic  institutions, 
and  education,  but  such  religious  dicta  are  suggestions, 


CHURCH  AND  STATE  95 

not  authoritative  decisions,  and  are  adopted,  if  at  all,  be- 
cause of  their  inherent  reasonableness. 

The  effect  of  all  this  is  not  necessarily  to  weaken  the 
church.  The  older  organization,  it  is  true,  may  be  sup- 
planted by  a  newer  and  more  progressive  one,  but  this 
should  and  does  result  in  a  deepening  of  spirituality  and 
a  clearer  philosophic  insight  into  the  meaning  of  life. 
Freed  from  the  entanglements  arising  from  the  pursuits 
of  material  power  and  wealth,  it  may  devote  itself  to 
matters  more  definitely  religious.  It  may  liberalize  its 
theology,  spiritualize  its  teachings,  humanize  its  ethical 
ideals,  and  seek  to  influence  men,  not  as  formerly,  by 
emphasis  on  pains  and  penalties,  but  on  the  beauty  of 
holiness  and  the  ideals  of  human  brotherhood.  Experi- 
ence seems  to  show  that  such  a  church  exercises  a  deeper 
and  truer  sway  over  man's  hearts  and  minds  than  an 
ecclesiastical  organization  wielding  what  may  now  be 
considered  as  secular  functions. 


CHAPTER  VII 

ECONOMIC   REGULATION 

It  will,  of  course,  be  impossible  in  an  elementary  study 
to  trace  with  any  fullness  the  development  of  the  power 
and  activity  of  the  state  in  the  regulation  and  control  of 
economic  life.  It  will  be  sufficient,  perhaps,  to  indicate 
in  a  general  way  what  has  been  the  attitude  of  the  state 
toward  the  chief  factors  in  economic  progress. 

TERRITORY 

The  Ownership  of  Land.1 — The  possession  of  abun- 
dant territory  for  its  population  is  the  foremost  economic 
necessity  for  a  state.  From  the  land  human  beings  de- 
rive their  chief  supply  of  food,  or  natural  wealth  which 
may  be  exchanged  for  foods,  so  that  without  land  no 
permanent  state  can  exist.  From  the  earliest  times, 
therefore,  states  have  had  to  devote  especial  attention  to 
the  acquisition  and  defense  of  territory.  Whatever 
claim  a  community  might  have  to  land  depended  at  first 
entirely  on  possession  and  use.  The  strong  hand,  nerved 
by  the  necessity  of  securing  a  livelihood,  was  the  only 
form  of  title  deed  recognized.  What  a  community  needed 
for  hunting,  grazing,  or  agricultural  purposes  it  used, 
defending  its  right  by  main  strength  against  intruders. 
If,  at  a  later  time,  a  vigorous  community,  necessitated 

*For  studies  of  the  history  of  property  see  Section  IV  of  the 
Bibliography. 

96 


ECONOMIC  REGULATION  97 

by  natural  increase  of  population,  found  itself  restricted 
in  food  supplies,  it  would  either  increase  its  boundaries 
by  war  on  weaker  neighbors,  or  would  send  out  colonies 
of  fighting  men  to  win  and  hold  newer  lands,  or  .would 
abandon  its  old  location  and  seek  a  new  one.  In  so  do- 
ing it  made  no  attempt  to  sell  the  old  nor  to  buy  the  new. 
It  seized  whatever  territory  it  needed,  exterminating  or 
driving  before  it  the  inhabitants  of  the  land.  The  in- 
vasion of  Canaan  by  the  Israelites,  the  migration  of  the 
Helvetians  as  narrated  by  Caesar,  and  the  migration  of 
the  Asiatic  Huns  and  Mongols  illustrate  such  movements 
of  population. 

The  Utilization  of  Land. — Occasionally  communities 
sought  to  acquire  ownership  in  much  more  territory  than 
it  was  possible  to  utilize.  This  might  be  due  to  fore- 
thought in  anticipation  of  future  growth  of  population, 
or  to  land  hunger — the  desire  to  own  land  irrespective  of 
its  immediate  or  even  prospective  utilization.2  Mani- 
festly such  claims  could  be  maintained  only  through  force 
or  in  the  absence  of  opposition.  The  same  condition 
practically  obtains  at  present.  States  define  their  boun- 
dary lines  at  times  out  of  all  proportion  to  the  possible 
needs  of  their  populations.  But  it  is  fairly  well  under- 
stood in  world  politics  that  a  state  asserting  a  claim  to 
lands  which  it  cannot  possibly  use,  holds  them  only  as 
long  as  it  can  defend  them  against  other  claimants  eager 
to  utilize  the  territory.  States  in  their  relations  one  with 
another  tacitly  assume  that  the  capacity  to  utilize  fur- 
nishes a  fairly  good  title  against  ownership  without  use. 
As  a  corollary  to  this  arises  the  theory  that  the  nation 
that  can  best  use,  has  a  better  right  to  land  than  a  nation 

a  See,  for  example,  Caesar's  account  of  the  Suevi,  De  Bella  Gallico, 
Book  IV,  Chapter  III. 


98  THE  STATE  AND  GOVERNMENT 

which  misuses,  or  only  partly  utilizes,  its  territory.  In 
all  such  controversies,  however,  the  decision  between  the 
two  rival  claimants  is  generally  settled  by  force  of  arms, 
not  by  discussions  of  ethical  standards.  Illustrations  of 
such  conflicts  may  be  found  in  our  own  history  in  our 
dealings  with  the  Indians,  with  Spain,  and  with  Mexico. 
The  System  of  Mandataries. — Under  the  system  of 
mandataries  3  included  in  the  plan  for  the  League  of 
Nations 4  a  somewhat  different  policy  is  set  forth. 

3  The  word  mandatary  emphasizes  the  notion  of  trusteeship  and 
is  therefore  better  than  mandatory. 

4  ARTICLE  22. 

To  those  colonies  and  territories  which  as  a  consequence  of  the 
late  war  have  ceased  to  be  under  the  sovereignty  of  the  States 
which  formerly  governed  them  and  which  are  inhabited  by  peoples 
not  yet  able  to  stand  by  themselves  under  the  strenuous  condi- 
tions of  the  modern  world,  there  should  be  applied  the  principle 
that  the  well-being  and  development  of  such  peoples  form  a  sacred 
trust  of  civilization  and  that  securities  for  the  performance  of  this 
trust  should  be  embodied  in  this  Covenant. 

The  best  method  of  giving  practical  effect  to  this  principle  is 
that  the  tutelage  of  such  peoples  should  be  entrusted  to  advanced 
nations  who  by  reason  of  their  resources,  their  experience  or  their 
geographical  position  can  best  undertake  this  responsibility,  and 
who  are  willing  to  accept  it,  and  that  this  tutelage  should  be  ex- 
ercised by  them  as  Mandatories  on  behalf  of  the  League. 

The  character  of  the  mandate  must  differ  according  to  the  stage 
of  the  development  of  the  people,  the  geographical  situation  of 
the  territory,  its  economic  conditions,  and  other  similar  circum- 
stances. 

Certain  communities  formerly  belonging  to  the  Turkish  Empire 
have  reached  a  stage  of  development  where  their  existence  as 
independent  nations  can  be  provisionally  recognized  subject  to  the 
rendering  of  administrative  advice  and  assistance  by  a  Mandatory 
until  such  time  as  they  are  able  to  stand  alone.  The  wishes  of 
these  communities  must  be  a  principal  consideration  in  the  selection 
of  the  Mandatory. 

Other  peoples,  especially  those  of  Central  Africa,  are  at  such  a 
stage  that  the  Mandatory  must  be  responsible  for  the  adminis- 
tration of  the  territory  under  conditions  which  will  guarantee 
freedom  of  conscience  and  religion,  subject  only  to  the  main- 
tenance of  public  order  and  morals,  the  prohibition  of  abuses  such 
as  the  slave  trade,  the  arms  traffic,  and  the  liquor  traffic,  and  the 
prevention  of  the  establishment  of  fortifications  or  military  and 
naval  bases  and  of  military  training  of  the  natives  for  other  than 


ECONOMIC  REGULATION  99 

Recognizing  that  barbarian,  semi-civilized,  or  backward 
races  inhabit  in  many  cases  lands  that  properly  should 
be  brought  into  close  contact  with  more  highly  civilized 
nations,  it  aims  to  substitute  for  the  older  methods  of 
exploitation  and  conquest  the  vesting  in  some  capable 
state  of  a  trusteeship  over  the  race  in  need  of  develop- 
ment, so  that  the  stronger  may  help  the  weaker  to  make 
more  rapid  advancement  under  the  guidance  and  protec- 
tion of  a  benevolent  trustee,  reporting  annually  to  the 
League  respecting  the  needs  and  progress  of  the  pro- 
tected nation.  The  plan  proposed  may  possibly  prove 
Utopian  in  this  era  of  racial  antagonism,  but  one  may 
readily  grant  that  the  mandatary  provision  of  the  League 
is  ideally  admirable  and  some  day  should  be  made  real. 
The  Individual  and  the  Land. — Under  a  theory  of 
ownership  based  on  communal  use,  evidently  no  indi- 
vidual in  a  community  could  claim  any  particular  portion 
of  land  as  his  own.  As  a  member  of  the  community  he 
shared  with  his  fellows  what  all  collectively  had.  In 

— 

police  purposes  and  the  defense  of  territory,  and  will  also  secure 
equal  opportunities  for  the  trade  and  commerce  of  other  Members 
of  the  League. 

There  are  territories,  such  as  South- West  Africa  and  certain  of 
the  South  Pacific  Islands,  which,  owing  to  the  sparseness  of  their 
population,  or  their  small  size,  or  their  remoteness  from  the 
centers  of  civilization,  or  their  geographical  contiguity  to  the  terri- 
tory of  the  Mandatory,  and  other  circumstances,  can  be  best  admin- 
istered under  the  laws  of  the  Mandatory  as  integral  portions  of 
its  territory,  subject  to  the  safeguards  above  mentioned  in  the 
interests  of  the  indigenous  population. 

In  every  case  of  mandate,  the  Mandatory  shall  render  to  the 
Council  an  annual  report  in  reference  to  the  territory  committed 
to  its  charge. 

The  degree  of  authority,  control,  or  administration  to  be  exer- 
cised by  the  Mandatory  shall,  if  not  previously  agreed  upon  by  the 
Members  of  the  League,  be  explicitly  defined  in  each  case  by  the 
Council. 

A  permanent  Commission  shall  be  constituted  to  receive  and 
examine  the  annual  reports  of  the  Mandatories  and  to  advise  the 
Council  on  all  matters  relating  to  the  observance  of  the  mandates. 


loo      THE  STATE  AND  GOVERNMENT 

other  words,  he  also  had  the  use  but  not  the  ownership 
of  land.  In  tribal  states,  therefore,  one  may  expect  to 
find  that  the  tribe  will  claim  hunting  or  grazing  grounds 
as  a  communal  possession  with  fairly  well-defined  bor- 
ders, but  yet  its  notion  of  ownership  is  still  a  communal 
ownership  based  on  use.  The  same  statement  is  practi- 
cally true  of  highly  developed  patriarchal  village  life  in 
agricultural  communities.  Village  lands  as  a  whole  are 
held  by  the  community,  and  each  recognized  member  of 
it  is  entitled  to  his  share  in  use,  but  he  may  not  sell  his 
portion  nor  dispose  of  it  by  will.  The  shares  allotted 
to  the  members  of  the  community  were  not  necessarily 
equal,  for  the  size  of  the  allotment  depended  somewhat 
on  the  social  status  of  the  person;  the  essential  point, 
however,  is,  that  each  head  of  a  family  was  entitled  to 
a  share  for  the  use  of  his  family.  Naturally,  if  a  family 
died  out,  its  right  of  use  reverted  to  the  community. 

Similar  theories  of  ownership  were  applied  to  mines 
found  in  the  communal  territory.  These,  also,  were  held 
and  worked  for  the  common  benefit.  When  navigable 
waters  became  important,  the  same  theory  was  applied 
to  them.  Members  of  the  community  might  use  the 
waters  as  a  privilege  incident  to  their  citizenship,  but 
ownership  was  vested  in  the  community,  and  individual 
use  was  subject  always  to  communal  regulation. 

Communal  Ownership. — Communal  ownership 
evidently  involved  much  management  and  administration 
on  the  part  of  the  members  of  the  community.  Conflict- 
ing claims  of  persons  entitled  to  a  share  in  use  had  to 
be  adjudicated,  allotments  made,  customs  declared,  times 
for  joint  grazing,  plowing,  and  harvesting  arranged,  de- 
fense provided  for  and  complete  regulations  for  the  other 
innumerable  details  of  administration.  If  the  community 


ECONOMIC  REGULATION  101 

was  founded  on  conquest,  the  management  was  probably 
vested  in  the  conquering  lord,  his  kinsmen,  and  his  imme- 
diate followers;  if  the  community  represented  a  peaceable 
growth  from  clan  organization,  then  headship  would 
naturally  be  vested  in  the  heads  of  families  and  in  their 
chief  or  elder.  The  ruling  body  held  periodical  meetings 
so  as  to  settle  such  matters  as  might  demand  attention. 
As  long  as  life  was  simple,  agriculture  primitive,  inven- 
tions few,  and  commerce  merely  local,  such  a  form  of 
communal  ownership  and  management  was  eminently 
satisfactory.  This  is  shown  by  the  fact  that  the  system 
developed  throughout  almost  all  the  world  and  survives 
yet  in  modified  form  in  the  village  communities  of  India 
and  China  and  in  the  Russian  mir  and  peasant  Soviets. 

The  Rise  of  Personal  Ownership. — But  in  other 
localities  many  causes  combined  to  break  down  this  sys- 
tem, (i)  If  through  contact  with  a  wider  environment 
some  men  developed  more  energy  and  greater  adapta- 
bility than  others,  and  these  qualities  showed  themselves 
in  greater  capacity  in  agriculture,  such  persons  would 
have  a  natural  disinclination  to  accept  neglected  holdings 
at  the  next  allotment.  Only  a  permanent  tenure  in  use 
would  satisfy,  and  that  step  developed  naturally  among 
flourishing  and  populous  communities.  (2)  This  tend- 
ency was  strengthened  in  those  communities  which  had 
permanent  boundaries  by  the  homing  instinct,  so  charac- 
teristic of  all  higher  animal  life.  Men  become  attached 
to  the  place  of  their  birth  and  prefer  the  old  and  the 
accustomed  to  the  new,  even  though  there  may  be  a 
theoretical  superiority  in  the  latter.  For  this  reason, 
also,  periodical  reassignments  of  land  fell  into  disfavor. 
(3)  Again,  conflicting  claims  of  kindred,  arising,  for 
example,  through  adoption,  or  a  father's  personal  pref- 


102  TH'E  STATE  AND  GOVERNMENT 

erence,  frequently  must  have  involved  transfers  of  right 
to  land;  or  a  conquered  community  might  be  compelled 
to  transfer  permanently  a  large  share  of  its  territory  to 
members  of  the  conquering  tribes  for  individual  distri- 
bution among  the  warriors.  Such  possibilities  must  have 
familiarized  communities  with  the  thought  of  an  owner- 
ship in  land  that  could  be  alienated,  either  through  com- 
munal action  or  at  the  wish  of  the  family  or  its  head, 
and  vested  in  particular  individuals. 

In  later  times  emphasis  on  the  personal  wish  of  the 
head  of  a  family,  especially  when  voiced  by  a  formal 
expression  of  his  will,  definitely  completed  the  process. 
Henceforth  a  family,  through  its  head,  had  a  claim  to 
ownership  in  land.  It  did  not  simply  have  the  right  of 
permanent  tenure,  but  under  certain  contingencies  it 
might  even  alienate  its  possessions.  At  a  still  later 
period,  wherever  urban  democracy  developed,  the  family 
as  a  legal  unity  tended  to  disintegrate.  Under  such  cir- 
cumstances even  individuals  of  the  family  might  per- 
sonally hold  land  in  full  ownership.  This  is  our  present 
theory  of  land  holding.  An  individual  may  own  land, 
use  it  or  not  use  it  at  his  pleasure,  or  may  lease  it  or  sell 
it  as  he  prefers.  Many  argue  that  this  tendency  has  gone 
too  far,  and  assert  that  the  community  should  never  allow 
its  citizens,  and  still  less  aliens,  to  hold  land  from  use. 
Such  an  argument  is  based  on  the  fundamental  proposi- 
tion that  the  use  of  land  is  essential  to  life,  and  that  each 
person  who  holds  needed  land  out  of  use  thereby  de- 
frauds to  that  extent  his  fellows  from  part  of  the 
opportunities  of  life.  California  goes  even  farther  in 
asserting  that  aliens  who  are  not  permitted  to  become 
citizens  (Orientals)  should  not  be  allowed  to  own  land 
even  for  use,  thereby  returning  to  the  ancient  theory 


ECONOMIC  REGULATION  103 

that  the  ownership  of  land  should  be  vested  in  citizens 
only.  Such  theories  as  socialism  and  the  single  tax,  for 
example,  favor  communal  ownership  of  land,  each  citi- 
zen having  the  right  to  use,  but  not  to  keep  from  use, 
an  amount  of  land  suited  to  the  necessities  of  his  family 
or  business.  Here,  again,  as  in  the  case  of  the  terri- 
torial claims  of  states,  there  is  a  conflict  between  an 
ownership  based  on  a  legal  theory  of  property  rights 
and  an  ownership  based  on  an  asserted  ethical  right, 
namely,  the  right  of  any  individual  to  take  possession 
of  unused  land  if  needed  for  his  support  and  welfare. 

Survivals  of  Communal  Ownership. — There  are 
still  many  survivals  in  modern  society  of  communal 
ownership.  The  theory  of  eminent  domain  implies  that 
the  state  has  the  primary  right  to  the  use  of  lands  as 
against  the  claims  of  private  individuals.  Again,  the 
waters  of  the  seacoast,  navigable  streams,  and  their 
shores  are,  or  should  be,  communal.  The  same  is  true 
in  many  states  of  all  waste  lands,  of  mining  and  water 
rights,  and  of  unclaimed  or  abandoned  property.  The 
family  also  still  has  ownership  of  all  property  left  by  its 
members  who  die  intestate  and  divide  it  among  them- 
selves in  accordance  with  rules  laid  down  by  customary 
law.  Finally,  the  rapidly  extending  sphere  of  govern- 
mental ownership  of  natural  monopolies  seems  to  imply 
that  land  and  its  underground  treasures,  as  essential 
means  of  livelihood,  may  again  become  communal,  not 
individual,  in  ownership.  The  outcome  of  this  clash  of 
rival  theories  is,  of  course,  still  a  matter  of  doubt. 
Arguments  for  a  tenure  based  on  use  are  theoretically 
strong.  Land  and  mining  wealth  in  the  possession  of 
the  people  as  a  whole  is  a  far  stronger  guaranty  of 
democracy  than  its  monopolization  by  the  few.  In  any 


104      THE  STATE  AND  GOVERNMENT 

case  no  one  can  safely  deny  that  the  permanent  pros- 
perity of  any  state  is  fundamentally  involved  in  the 
wisdom  or  nonwisdom  of  its  system  of  land  tenures. 

Colonization.5 — If  population  multiplies  too  rapidly 
and  national  boundaries  cannot  be  enlarged  peaceably  or 
through  war,  then  migration  is  and  has  always  been  the 
historic  remedy.  The  spread  of  population  from  primi- 
tive centers  has  often  been  traced.  The  colonizing  sys- 
tems of  Phoenicia,  Greece,  and  Rome  are  known  to  all 
students  of  classical  history,  and  the  movements  of  Teu- 
tonic population  in  the  time  of  Caesar  and  in  the  early 
Christian  centuries  are  part  of  our  common  knowledge. 
The  invention  of  the  compass,  the  circumnavigation  of 
Africa,  and  the  discovery  of  America  gave  a  new  impetus 
to  colonization.  Portugal  and  Spain  led  the  way,  then 
Holland,  France  and  England.  The  policy  at  first  fol- 
lowed was  that  of  exploitation  and  trade;  agricultural 
settlements  came  last  and  were  for  a  time  considered 
least  in  importance.  An  era  of  exploitation  as  such  can- 
not permanently  endure.  A  firm  hold  on  newly  dis- 
covered land  depends  finally  on  mining,  trading,  and 
agricultural  centers.  The  mother  country  protects  and 
aids  in  developing  such  centers  in  return  for  trade  privi- 
leges, good  will,  and  an  acknowledgment  of  supremacy. 
Political  capacity  on  the  part  of  the  colony  in  time  brings 
autonomy,  either  peaceably  or  by  revolution.  The  utility 
of  productive  colonies  is  so  manifest  that  every  great 
state  eagerly  adds  to  its  colonial  possessions,  searching 
the  world  for  places  in  uncivilized  or  partly  civilized 
lands  suited  for  trading  or  colonizing  purposes.  There 

5  See  Osborn,  Men  of  the  Old  Stone  Age  for  statements  respect- 
ing the  waves  of  immigration  into  prehistoric  Europe.  For  studies 
of  colonization  see  Section  IV  of  the  Bibliography. 


ECONOMIC  REGULATION  105 

it  establishes  a  sphere  of  influence  or  a  protectorate,  sends 
its  traders  and  missionaries  and  seeks  to  build  up  its 
interests  on  a  permanent  basis.  The  population  of  the 
colony  multiplies  and  the  civilization  of  the  ancestral 
home  is  reproduced  in  miniature,  with  such  modifications 
as  are  compelled  by  differences  in  environment.  This 
great  colonizing  era,  which  is  still  vigorous  though  it 
has  already  lasted  over  four  hundred  years,  is  effecting 
profound  changes  in  political  development.  The  posses- 
sion of  immense  areas  of  fertile  land  suitable  for 
colonization  makes  an  outlet  for  a  surplus  but  enterpris- 
ing population,  fosters  commerce  and  manufactures,  and 
strengthens  national  prestige  and  power.  Tropical  areas 
not  suited  to  white  settlement  are,  as  trading  centers, 
made  to  furnish  valuable  material  for  foods  and  manu- 
factures, sometimes  through  the  labor  of  "coolies,"  as  in 
the  Guianas  of  South  America  or  in  the  Fiji  Islands. 
In  consequence,  practically  all  the  available  parts  of  the 
earth  have  come  under  the  influence  of  Western  civiliza- 
tion, and  the  great  nations  are  seeking  to  utilize  the 
respective  parts  under  their  sway.  The  twentieth  century 
is  destined  to  see  a  mighty  expansion  of  Western  popu- 
lation into  available  centers  at  present  thinly  populated, 
such  as  Siberia,  Australasia,  Canada,  and  the  southern 
part  of  South  America,  and  scientific  knowledge  applied 
to  the  development  of  these  regions  will  accomplish  in  a 
few  years  what  under  ordinary  processes  would  require 
centuries  of  time  and  energy. 

On  the  other  hand,  the  great  Oriental  nations  of 
China,  India,  and  Japan  are  straitened  in  their  posses- 
sions and  are  seeking  other  lands  for  purposes  of 
colonization.  These  races  are  increasingly  barred  out 
by  the  states  of  the  West,  thus  creating  international 


106      THE  STATE  AND  GOVERNMENT 

complications.  Africa,  the  Americas,  and  Australia  are 
the  large  areas  as  yet  only  partly  developed,  omitting 
Siberia  and  the  western  third  of  Asia,  but  these  all  are 
controlled  by  European-American  states  eager  to  pre- 
serve their  lands  for  their  own  racial  stock.  No  one 
knows  the  outcome  of  this  situation  though  he  may  sur- 
mise the  possibilities  involved  in  the  struggle  of  races 
for  survival. 

AGRICULTURE 

Food  Supplies. — When  the  population  of  any 
region  tends  by  natural  increase  or  through  immigration 
to  press  too  closely  on  its  ordinary  means  of  subsistence, 
states  guided  by  intelligent  leaders  have  been  able  to 
multiply  food  supplies  by  scientific  devices.  Such  means 
now  regularly  form  a  large  part  of  governmental  ac- 
tivity. Even  the  early  Oriental  states  developed  vast 
systems  of  drainage  and  irrigation  for  the  sake  of  agri- 
culture, and  facilitated  transportation  by  the  building  of 
roads  and  canals.  Such  works  are  still  carried  on  in 
all  important  countries,  either  directly  by  the  state  or 
under  its  supervision  and  control.  In  this  country  we 
see  further  extensions  of  the  same  idea  in  the  efforts 
of  the  government  to  aid  the  interests  of  scientific 
farming  by  the  support  of  agricultural  schools  and  by 
experiments  in  horticulture,  stirpiculture,  and  in  the 
preservation  of  foods  through  canning,  and  in  the  impor- 
tation of  useful  grains,  fruits,  and  other  foods  for  pro- 
duction in  home  soils.  Increasing  attention  is  given  to 
the  preservation  of  forests  and  game,  such  as  the  reindeer 
herds  of  Alaska,  to  the  utilization  of  arid  lands  through 
irrigation,  and  marshy  lands  through  draining,  and  to 
the  safeguarding  and  development  of  fisheries,  the  im- 


ECONOMIC  REGULATION  107 

portance  of  which  as  a  source  of  food  supply  is  well 
shown  by  the  international  prominence  of  the  fishing 
waters  of  Newfoundland,  Alaska,  and  Saghalien.  In 
the  Great  War  states  assumed  the  right  to  ration  their 
entire  population  so  as  to  conserve  foods  and  lengthen 
out  the  supply  as  a  safeguard  against  national  starva- 
tion. Kidd  6  and  other  writers  point  to  the  time  when 
the  tropics  will  furnish  nations  of  the  temperate  zones 
with  vast  food  supplies,  and  these  regions  are  already 
receiving  larger  attention  from  states,  as  they  feel  the 
necessity  of  multiplying  grain  and  flesh  foods  for  their 
increasing  populations. 

COMMERCE  7 

The  Market  Place. — A  great  step  in  the  enlarge- 
ment of  the  economic  function  of  the  state  came  with 
the  rise  of  commerce.  As  bartering  between  communi- 
ties became  increasingly  frequent  with  the  growth  of 
wants,  the  community  had  to  develop  roads  and  market 
places.  Traders  would  not  venture  where  robbery  was 
inevitable.  Roads  must  be  reasonably  safe,  and  a  place 
for  barter  set  aside  whose  neutrality  would  be  guaran- 
tied. Such  market  places  naturally  were  at  first  on  the 
"marks"  or  boundaries,  or  at  the  junction  of  much- 
traveled  paths.  Here  by  custom  would  gather  traders 
and  buyers  from  many  communities,  secured  against 
robbery  and  attack  by  the  custodians  of  the  market  place, 
who  would  exact  their  fees  in  return  for  the  privileges 
they  gave.  Such  a  center  readily  grew  into  a  trading 
village,  different  in  kind  from  the  ordinary  farming  vil- 

6  The  Control  of  the  Tropics.    See  also  works  of  Alleyne  Ireland, 
Section  IV  of  the  Bibliography. 

7  For  works  on  this  subject  see  Section  IV  of  the  Bibliography. 


io8      THE  STATE  AND  GOVERNMENT 

lage.  Its  customs  came  to  be  guarantied  by  the  neigh- 
boring communities  and  these  customs  developed  into 
the  unwritten  or  written  charters  of  municipalities  of 
later  times.  In  order  to  facilitate  commerce  some 
attention  would  have  to  be  paid  to  the  building  of 
bridges  and  roads,  which  might  be  utilized  also  for  mili- 
tary purposes.  Along  such  roads  passed  posts  or  mes- 
sages sent  by  merchants  or  by  the  state,  as  the  necessity 
for  frequent  communications  arose  with  the  development 
of  commerce  and  administration.  If  such  roads  ter- 
minated in  seaport  communities,  harbor  improvements 
also  might  be  deemed  advisable,  and  these  might  be  made 
by  interested  individuals  or  by  the  community  itself.  In 
modern  days  enormous  expenditures  are  made  for  such 
public  works  and  the  sphere  of  governmental  activity  is 
constantly  enlarging  through  the  state  ownership  of 
railroads,  cables,  telegraphs,  and  the  subsidizing  of  com- 
mercial and  manufacturing  enterprises. 

A  Medium  of  Exchange. — As  trading  became  im- 
portant the  necessity  for  some  common  medium  of 
exchange  constantly  grew.  It  became  inconvenient  to 
exchange  goods  in  kind,  even  though  that  system  had 
developed  to  perfection  by  fixing  a  customary  value  on 
everything  tangible  on  the  exchange  list,  from  a  rude  tool 
to  a  slave.  At  first  some  one  staple  article  was  selected 
and  all  other  things  were  valued  in  that.  Live  stock, 
such  as  sheep  or  cattle,  formed  such  a  medium,  supply- 
ing to  us  thereby  our  word  pecuniary  (pecus,  cattle). 
When  metals  were  brought  into  use,  these  came  to  be 
valuable  media  for  exchange  and  were  accepted  by  weight 
in  return  for  other  goods.8  A  great  idea  came  into  the 

8  The  British  pound  sterling  was  in  Saxon  times  a  pound  (troy) 
of  silver. 


ECONOMIC  REGULATION  109 

business  world  when  responsible  communities  or  mer- 
chants began  to  stamp  under  seal  a  guarantied  weight  in 
specified  metals.9  Such  coins  passed  through  definite 
development  in  respect  to  shape,  edging,  impressions,  and 
solidity  of  guaranty,  and  finally  the  entire  matter  of 
coinage  was  removed  from  the  hands  of  individuals  and 
communities  and  centered  in  the  state.  The  nationalizing 
of  coinage  systems  and  international  agreements  based 
on  these  clearly  indicate  a  high  and  wide  commercial 
development.  In  all  such  cases  the  metal  so  stamped  is 
considered  to  be  inherently  worth  the  amount  indicated 
by  the  stamp.  Governments,  tempted  by  the  hope  of 
gain  or  of  borrowing  money  under  false  pretenses,  have 
stamped  as  money  material  not  intrinsically  worth  the 
amount  indicated  by  the  stamp.  Such  fiat  money  be- 
comes in  effect  a  note  or  promise  to  pay  and  is  of  value 
only  in  proportion  to  the  ability  of  the  state  to  give  full 
face  value  on  demand.  Illustrations  may  be  found  in 
the  debased  coinage  of  mediaeval  days  and  in  token 
money  and  the  paper  currency  issued  by  the  combatant 
states  during  the  late  war.  Akin  to  this  development  is 
the  present  power  of  the  state  in  fixing  standard 
weights  and  measures. 

The  Bank. — As  long  as  wealth  consists  chiefly  of 
goods  in  kind,  the  main  problems  of  economic  life  center 
in  the  multiplication  of  fertile  lands  and  labor ;  but  when 
through  commerce  wealth  in  the  form  of  money  begins 
to  accumulate,  a  new  set  of  problems  arises.  Money,  of 
course,  may  be  kept  on  hand  in  hidden  places  against 
a  time  of  need,  subject  only  to  the  danger  of  robbery,  a 

9  For  such  studies  note  for  example,  Alexander  Del  Mar,  History 
of  the  Precious  Metals,  and  History  of  Money  in  Ancient  Coun- 
tries. 


i io  THE  STATE  AND  GOVERNMENT 

danger,  however,  always  imminent.  It  would  manifestly 
be  an  advantage  to  the  owner  if  some  responsible  party, 
in  return  for  the  use  of  the  money,  would  assume  charge 
of  it  and  return  it  on  demand,  or  use  it  and  pay  interest 
for  the  privilege.  Furthermore,  when  a  merchant  wishes 
to  send  money  to  some  distant  place  in  payment  of  goods 
bought  or  to  be  purchased,  he  can  send  it  under  guard 
to  the  place  indicated,  but  at  heavy  expense  and  at  great 
danger  of  robbery.  He  would  be  greatly  advantaged  if 
some  wealthier  merchant  having  branches  in  both  places 
would  accept  the  money  in  the  one  place  and  agree  to  pay 
a  similar  sum  in  the  other  place  on  demand,  making  a 
proper  charge  for  the  transaction.  From  such  needs  as 
these  developed  a  system  of  private  banks,  which  greatly 
aided  the  development  of  commerce  through  facility  of 
investment  and  exchange.  The  failure  of  such  a  bank 
to  meet  its  obligations  might,  however,  prove  to  be  a 
great  hardship  to  public  as  well  as  to  private  interests. 
Two  governmental  policies  developed  from  this  possi- 
bility, (i)  close  and  efficient  regulation  of  private  banks 
so  as  to  diminish  the  possibility  of  loss  to  innocent  indi- 
viduals and  (2)  the  establishment  of  national  banks, 
either  like  the  Bank  of  England  or  the  original  United 
States  Bank,  or  national  banking  systems  like  that  de- 
veloped in  the  United  States  since  the  Civil  War.  By 
such  regulation  of  banking  interests  the  government 
brings  stability  and  confidence  into  the  monetary  system 
of  the  nation. 

Governmental  Regulation. — Along  similar  prin- 
ciples the  state  undertakes  in  highly  developed  com- 
mercial communities  to  regulate  for  the  public  good  great 
business  interests  like  that  of  insurance  and  corporations 
of  all  sorts,  both  private  and  quasi-public.  As  an  addi- 


ECONOMIC  REGULATION  ill 

tional  aid  to  commerce  a  modern  state  establishes  a  con- 
sular service  which  it  places  at  the  service  of  its  citizens 
who  are  abroad  or  engaged  in  foreign  commerce.  It  also 
negotiates  commercial  treaties  with  other  states  so  as  to 
develop  reciprocal  commerce,  it  subsidizes  steamship 
lines,  improves  harbors,  lines  the  coast  with  lighthouses 
and  life-saving  stations,  builds  a  navy  to  protect  its  ship- 
ping, and  seeks  to  safeguard  the  lives  and  property  of 
its  citizens  in  foreign  countries  who  are  engaged  there 
in  business,  pleasure,  or  study. 

MANUFACTURING 

The  Skilled  Worker. — In  simple  primitive  com- 
munities industrial  life  was  represented  by  the  manufac- 
ture of  tools,  weapons,  and  household  implements,  and 
was  almost  entirely  personal,  not  communal.  To  be 
sure  the  community  was  interested  in  the  development  of 
tools  and  weapons  and  took  a  lively  interest  in  seeing  that 
each  member  had  his  quota,  but  the  making  of  these 
was  individual,  and  individual  ownership  began  in 
notions  associated  with  personal  possession  of  tools, 
weapons,  clothes,  and  ornaments.  The  manufacture  of 
weapons  and  their  own  ornaments  probably  fell  to  the  lot 
of  men ;  tools  for  primitive  industry,  weaving  and  house- 
hold implements  of  all  sorts  were  probably  invented  by 
women,  on  whom  devolved  manual  labor  and  domestic 
cares.  Each  patriarchal  household  was  the  center  of  in- 
dustry, and  the  comfort  of  its  members  depended  on  the 
skill  and  ingenuity  all  displayed.10  With  the  use  of 
metals  much  more  skill  in  the  handling  of  tools  was 

10  Note  the  last  chapter  of  Proverbs,  as  illustrative  of  the  ancient 
duties  of  a  "virtuous  woman." 


112      THE  STATE  AND  GOVERNMENT 

necessary.  Then  developed  the  smith,  first  of  artisans, 
parent  of  many  smithing  trades  and  the  ancestor  of  many 
family  names.  It  is  probable  that  at  first  skilled  smiths 
wandered  about  from  village  to  village,  gypsy  fashion, 
preserving  the  secrets  of  their  trade  and  supplying  the 
demands  for  better  and  more  efficient  tools  and  weapons. 
From  this  parent  trade  developed  in  turn  the  various 
crafts  of  later  commercial  life,  each  the  center  of  its 
peculiar  industry,  and  the  membership  of  each  bound 
together  in  ties  of  guild  relationship,  modeled  in  organ- 
ization after  the  clan.  As  long  as  these  trade  guilds, 
made  up  of  masters  and  men,  were  useful  and  flexible, 
the  state  encouraged  them  with  special  privileges  and 
recognition  of  their  peculiar  customs  or  charters.  When, 
however,  they  became  too  rigid,  and  failed  to  rise  to  the 
demands  of  a  broader  commercial  life,  they  were  sup- 
pressed, and  freedom  in  industries  was  adopted  as  a 
policy.  Under  this  modern  system,  after  a  long  era  of 
suppression,  trade  organizations  once  more  developed  in 
the  form  of  trade  unions  and  federations  of  trades  and 
industries.  The  place  of  these  in  the  state  is  gradually 
being  settled  by  judicial  decision  and  legislation. 

The  Industries. — Industries  in  the  larger  sense  re- 
ceived little  attention  from  the  state  up  to  recent  times. 
Monopolies  might  be  granted  so  as  to  encourage  some 
particular  industry,  tariffs  placed  on  imports  so  as  to 
encourage  domestic  manufactures  and  patent  rights  given 
in  order  to  encourage  ingenuity  in  invention,  but  these 
ideas  did  not  become  definite  scientific  governmental 
policies  until  the  nineteenth  century.  Now,  if  a  state 
wishes  to  develop  its  own  industries,  it  may  do  so  by 
placing  tariff  duties  on  all  competing  goods  entering  the 
country.  This  is  virtually  an  indirect  tax  on  home  con- 


ECONOMIC  REGULATION  113 

sumption.  If  a  state  wishes  to  sell  to  the  foreign  trade 
its  industrial  products,  it  must  reduce  duties  on  those 
goods  that  come  in  exchange  for  such  exports.  Indus- 
tries also  may  be  stimulated  by  encouraging  scientific 
research  and  making  the  benefits  of  scientific  discoveries 
open  to  its  citizens,  or  by  patent  laws  granting  monopo- 
lies in  the  manufacture  and  sale  of  inventions.  The 
multiplication  of  patents  through  wise  legislation  has 
been  one  of  the  greatest  agencies  in  the  development  of 
modern  capitalism.11 

LABOR 

In  all  these  forms  of  economic  life,  the  agricultural, 
commercial,  and  industrial,  the  state  rarely  used  to 
interfere  in  the  regulation  of  labor.  Slavery  and  its 
modified  forms  of  serfdom  and  peonage  were  the  preva- 
lent forms  of  labor  down  to  the  age  of  commerce.  In 
the  transition  from  one  to  the  other,  regulations  of  labor 
were  increasingly  made  by  the  state  but  only  as  it  was 
necessary  to  define  customary  law  in  respect  to  personal 
status  and  property  rights.  The  rise  of  modern  com- 
mercial and  industrial  life  brought  about  a  demand  for 
a  powerful  umpire  to  mediate  between  the  wealthy  and 
the  agricultural,  industrial  masses.  This  interference 
took  the  form  of  adjusting  the  status  of  the  serf  and  the 
freedman  in  the  early  stage,  and  in  the  later  stage,  of  the 
freeman  who  was  not  a  landowner,  a  merchant,  nor  a 
master  craftsman.  As  long  as  class  distinctions  obtain 
by  constitution,  such  regulation  is  necessary  whenever 
a  change  in  status  takes  place.  In  democracies,  where  all 
men  by  theory  are  equal,  the  government  cannot  legis- 

11  For  an  excellent  series  of  addresses  on  patents  see  the  report 
of  the  "Patent  Centennial  Celebration,"  Washington,  1892. 


114      THE  STATE  AND  GOVERNMENT 

late  for  or  against  any  particular  class  but  must  treat 
all  alike.  While  this  is  true  of  persons  it  is  not  true  of 
occupations.  Some  occupations  are  distinctly  beneficial 
to  the  state,  others  are  harmful  or  likely  to  prove  so 
under  careless  management.  It  is  common  for  all  states 
to  encourage  the  first  class  by  carefully  safeguarding 
their  interests ;  and  to  prohibit  socially  injurious  occupa- 
tions entirely,  such  as  certain  forms  of  gambling,  pros- 
titution, and,  in  the  United  States,  the  liquor  traffic. 
Some  occupations  are  in  themselves  necessary  but  should 
be  performed  only  by  those  properly  trained.  The  pro- 
fessions of  law,  medicine,  and  the  many  vocations 
associated  with  public  health  illustrate  how  the  state  may 
insist  on  a  standardized  training  before  the  person  is 
admitted  to  practice.  The  state  also  may  regulate  the 
conditions  of  labor  for  women  and  children  so  as  to 
safeguard  national  health,  and  for  adult  males  engaged 
in  dangerous  occupations. 

Late  years  have  brought  about  a  much  greater  atten- 
tion on  the  part  of  the  state  to  the  problems  of  labor 
than  formerly.  It  begins  to  be  recognized  that  laboring 
interests  heretofore  have  been  too  much  neglected  and 
that  a  skilled  and  intelligent  body  of  workers  is  a  great 
national  asset.  The  change  in  attitude  is  shown  by  the 
organization  of  national  departments  of  labor,  by  the 
interest  displayed  in  the  great  labor  congresses  of  recent 
years,  by  the  rise  of  political  movements  among  laborers, 
as  in  Great  Britain  for  example,  and  by  the  recognition 
of  the  rights  of  labor  inserted  in  the  plan  of  the  League 
of  Nations.12 

"ARTICLE  23. 

Subject  to  and  in  accordance  with  the  provisions  of  international 
conventions  existing  or  hereafter  to  be  agreed  upon,  the  Members 
of  the  League: 


ECONOMIC  REGULATION  115 

Just  how  much  emphasis  should  be  placed  on  labor 
interests  is  a  matter  of  vigorous  present-day  discussion. 
Under  the  individualistic,  laissez-faire  policy  of  England 
in  the  nineteenth  century,  laborers  were  left  to  the  mercy 
of  free  competition,  without  the  right  to  combine  for 
joint  purposes.  The  results  were  disastrous  and  the 
chartist  movement  (1838-9)  with  its  six  demands13 
was  the  turning  point  towards  the  newer  systems  of 
recognized  trade  unions.  Trade  unionism  in  these  days 
is  conservative  and  finds  its  radicalism  in  several  forms : 
first,  the  Marxian  theory  that  the  proletariat  masses — 
the  laboring  classes — should  control  government,  collec- 


(o)  will  endeavor  to  secure  and  maintain  fair  and  humane 
conditions  of  labor  for  men,  women,  and  children,  both 
in  their  own  countries  and  in  all  countries  to  which 
their  commercial  and  industrial  relations  extend,  and 
for  that  purpose  will  establish  and  maintain  the  neces- 
sary international  organizations; 

(6)  undertake  to  secure  just  treatment  of  the  native  inhabi- 
tants of  territories  under  their  control; 

(c)  will  entrust  the  League  with  the  general  supervision  over 
>  the  execution  of  agreements  with  regard  to  the  traffic 
in  women  and  children,  and  the  traffic  in  opium  and 
other  dangerous  drugs; 

(rf)  will  entrust  the  League  with  the  general  supervision  of 
the"  trade  in  arms  and  ammunition  with  the  countries 
in  which  the  control  of  this  traffic  is  necessary  in  the 
common  interest; 

(2)  will  make  provision  to  secure  and  maintain  freedom  of 
communications  and  of  transit  and  equitable  treat- 
ment for  the  commerce  of  all  Members  of  the  League. 
In  this  connection,  the  special  necessities  of  the  re- 
gions devastated  during  the  war  of  1914-1918  shall 
be  borne  in  mind; 

(/)  will  endeavor  to  take   steps   in  matters   of   international 

concern  for  the  prevention  and  control  of  disease. 
See  also,  in  the  Peace  Treaty  with  Germany,  Part  XIII,  entitled 
"Labour." 

"The  "People's  Charter"  called  for  such  "impossible"  demands 
as:  manhood  suffrage,  the  ballot,  parliamentary  districts  of  equal 
population,  annual  sessions,  payment  to  members,  who  should  be 
free  from  a  property  qualification. 


Ii6      THE  STATE  AND  GOVERNMENT 

tively  owning  all  wealth  and  means  of  production;14 
second,  the  syndicalist-guild  socialistic  demand  that  each 
basal  industry  shall  be  autonomous  and  controlled  by  its 
workers;  and,  third,  more  moderate  demands  that  indus- 
trial workers  be  given  a  large  voice  in  determining  the 
conditions  and  wages  in  their  respective  industries.  Un- 
questionably important  modifications  in  the  present 
system  will  meet  with  favor  within  the  next  few  years. 

"The  soviet  system  of  Russia  with  its  motto,  "All  power  to  the 
Soviets" — the  combinations  of  peasants,  artisans,  and  soldiers — is 
based  on  Marxian  teachings.  For  a  summary  and  bibliography  of 
"The  Soviet  Republic  and  its  Government,"  see  Ogg,  Governments 
of  Europe,  Chapter  XL,  revised  ed.,  1920. 


PART  II 


ORGANIZATION  OF  GOVERNMENT 

AND 

DEMOCRACY 


CHAPTER  VIII 

DISTINCTION   BETWEEN    STATE  AND  GOVERNMENT 

The  Danger  of  Confusing  State  with  Government. 

— Political  government  has  already  been  shown  to  be 
distinct  from  the  governmental  organization  of  the 
other  social  institutions,1  and  defined  2  as  the  organ- 
ization of  the  state  to  which  is  entrusted  the  right  to 
exercise  the  sovereign  powers  of  the  state.3  Properly 
such  an  organization  should  be  able  to  exercise  any 
power  whatsoever  that  may  be  included  under  the 
term  sovereignty.  Yet  this  clearly  would  make  the 
power  of  the  government  coterminous  with  the  power 
of  the  state  and  might  readily  cause  a  confusion  or 
identification  of  one  with  the  other.  This  was  com- 
mon enough  in  former  times  and  is  not  unknown  in 
the  arguments  of  many  modern  political  discussions. 
An  autocratic  monarch,  for  example,  unrestrained  by 
any  legal  checks  on  the  exercise  of  his  powers,  might 
well  identify  himself  with  the  state  and  assume  that 
in  his  own  personal  will  were  located  the  full  powers 
of  sovereignty.  It  is  not  strange,  therefore,  that 
modern  writers  who  confuse  state  and  government 
should  denounce  the  so-called  "absolute  state/*  that 

1  Chapter  I. 

1  Page  48. 

a  In  Great  Britain  the  term  government  is  used  to  designate  those 
in  charge  of  the  governmental  organization,  the  leaders  of  the 
personnel  of  government. 

.19 


120      THE  STATE  AND  GOVERNMENT 

is,  a  state  having  sovereignty  defined  as  absolute  power, 
for  to  them  it  implies  a  government  having  absolute 
power,  against  which  the  people  have  no  rights,  not  even 
the  right  of  revolution. 

The  danger  to  liberty  in  identifying  state  with  govern- 
ment, already  discussed,4  was  clearly  perceived  even  in 
Greek  times.  In  the  course  of  centuries  many  lines  of 
argument  developed,  aiming  to  show  how  this  danger' 
might  be  averted,  and  four  of  these  will  briefly  be  ex- 
plained as  illustrative  of  the  situation. 

/.  Popular  Sovereignty. — In  the  government  of 
horde  or  tribe  the  capable  adult  population  was  the  final 
authority  in  governmental  matters.  They  were  voiced 
and  ruled  by  elders  and  chiefs,  but  important  decisions 
were  ordinarily  left  to  the  "yes"  or  "no"  vote  of  the 
"people"  themselves.  In  such  forms  of  organization  the 
people  met  in  assembly  on  proper  occasions  and  after 
listening  to  the  opinions  and  recommendations  of  chiefs 
or  leaders  would  give  a  decision  through  words  or  ges- 
ture as  to  the  line  of  policy  they  desired  to  be  adopted. 
Illustrations  are  common  enough,  as  in  the  ecclesia  of 
the  soldiers  in  Homer,5  the  warrior  assemblies  of  the 
Germans  and  the  Gauls  as  described  by  Caesar  or 
Tacitus,6  or  the  wish  and  will  of  the  "Senatus  Popu- 
lusque  Romanus,"  or  the  discussions  of  Indian  tribes,  so 
fully  described  by  Morgan  in  his  Ancient  Society,  as  well 
as,  in  modern  times,  the  Lands gemeinde  of  certain  rural 
cantons  of  Switzerland,  or  the  gathering  of  townsmen  in 
old-fashioned  New  -England  towns,  or  in  fact  in  the 
usual  procedure  followed  in  social  organizations,  when, 

4  Page  49- 

*  Second  book  of  the  Iliad. 

'Germania  for  example,  Chapter  XI.  See  also  page  293. 


STATE  AND  GOVERNMENT  DISTINGUISHED     121 

for  example,  an  executive  committee  makes  recommen- 
dations to  the  members.  In  all  such  meetings  there  is 
a  recognition  of  the  fact  that,  after  all,  the  real  power 
in  a  community  should  exist,  not  in  the  officers  or  leaders, 
who  are  thought  of  as  representatives,  but  in  the  adult 
membership  whose  fundamental  interests  are  at  stake. 

This  notion  was  worked  out  carefully  as  a  political 
theory  by  the  trained  lawyers  of  the  Roman  Empire,  who 
argued  that  ultimately  all  power  resided  in  the  people, 
who,  however,  delegated  their  powers  to  an  emperor, 
selected  by  them,  who  used  these  during  his  lifetime  for 
the  benefit  of  the  people.  At  his  death  the  powers  re- 
verted to  the  sovereign  people  who  would  then  elect 
another  ruler  and  delegate  their  powers  to  him  as  before. 

This  great  teaching  of  popular  sovereignty  remained 
basal  in  Roman  law,  and  harmonized  well  with  contem- 
porary Germanic  and  Anglo-Saxon  teachings,7  so  that 
when  in  the  early  modern  period,  there  came  reactions 
against  monarchical  absolutism,  the  doctrine  of  the  sov- 
ereignty of  the  people  readily  came  to  the  front  and  was 
the  hypothesis  on  which  the  important  social  contract 
theories  of  Hobbes,  Locke,  and  Rousseau  were  based. 
Unfortunately,  as  was  true  of  the  Roman  lawyers  and 
of  Hobbes,  human  casuistry  devised  an  explanation 
whereby  the  sovereign  powers  of  the  people  automati- 
cally passed  into  the  possession  of  an  autocratic  monarch, 
so  that  according  to  such  explanations  people  possessed 
a  mere  dream  sovereignty,  not  the  substance  of  it. 

//.  Fundamental  Law. — Again,  in  the  classical 
ages  of  Greece  and  Rome,  and  also  in  the  Middle  Ages, 

7  For  a  short  summary  of  these  see  Stubbs'  Constitutional  History 
of  England,  vol.  i,  especially  Chapter  II ;  or  see  Gummere,  Germanic 
Origins. 


122      THE  STATE  AND  GOVERNMENT 

it  was  taught  that  there  were  certain  fundamental  prin- 
ciples of  right  and  justice  eternal  in  the  universe,  revealed 
by  the  gods  (or  by  God)  to  the  consciences  of  men,  or 
thought  out  by  philosophic  meditation,  or  found  con- 
tained in  time  honored  customs  handed  down  by  tradition 
from  antiquity  and  tested  by  human  experience,8  that 
unitedly  formed  a  body  of  law  binding  on  the  con- 
sciences of  rulers,  who,  should  they  violate  these,  would 
incur  divine  wrath  and  human  hatred.  Thus  Antigone  9 
buried  her  brother  against  the  orders  of  King  Creon 
because  of  the  higher  law  written  in  her  heart ;  and  early 
Christians  went  to  martyrdom  obeying  God  rather  than 
the  orders  of  a  heathen  government ;  and  the  English  of 
Cromwell's  time  relying  upon  their  ancient  customs  and 
the  ' 'rights  of  Englishmen"  rebelled  against  the  despotic 
Stuarts  and  established  their  liberties. 

In  this  theory  a  troublesome  factor  in  the  matter  lay 
in  the  fact  that  this  fundamental  law,  binding  on  the 
conscience  of  an  autocratic  king,  was  religious  and  moral, 
not  legal,  and  might  not  prove  a  serious  restraint  to  a 
despot  or  a  tyrant  who  was  in  charge  of  his  own  con- 
science and  preferred  to  decide  in  favor  of  his  own  lax 
interpretation  of  his  obligations  to  his  subjects.  The 
people  in  such  cases,  could  do  nothing  but  passively  sub- 
mit and  await  with  patience  the  death  of  the  king  or 
else  by  assassination  or  revolution  endeavor  to  bring 
about  changes  for  the  better. 

///.  Separation  of  Powers. — Another  aspect  was 
given  by  Montesquieu  10  who,  living  under  the  despotism 
of  the  French  Bourbon  kings,  observed,  as  he  thought, 

8  Like  the  Roman  jus  gentium,  or  the  common  law  of  England. 
'  See  Sophocles'  tragedy,  Antigone. 

10  Spirit  of  Laws,  Book  XI,  Chapter  VI,  and  see  page  164  of 
this  text. 


STATE  AND  GOVERNMENT  DISTINGUISHED     123 

in  the  England  of  the  early  eighteenth  century,  the  best 
of  existing  European  governments  in  his  estimation,  a 
principle  of  government  which  has  come  to  be  known  as 
the  ' 'separation  of  powers."  He  noted  that  the  govern- 
ment of  England  was  divided  into  three  well  balanced 
parts,  the  executive,  the  lawmaking,  and  the  judicial 
departments,  and  that  each  had  its  own  powers  and  its 
own  personnel.  This  separation  and  balance  seemed  to 
him  to  be  the  real  explanation  of  England's  liberty  and 
hence  he  concluded  that  popular  liberty  in  other  states 
might  best  be  secured  by  organizing  government  after 
this  principle,  including  a  careful  series  of  checks  and 
balances.  The  American  convention  of  1787  approved 
of  this  suggestion  and  incorporated  the  idea  of  it  in  the 
Constitution,  so  that  the  Federal  Government  of  the 
United  States  of  America  is  based  on  this  principle.  We 
in  these  days  are  by  no  means  so  sure  that  this  principle 
is  correct  or  that  it  embodies  the  safest  and  sanest  method 
of  attaining  human  liberty. 

IV.  Marsiglio's  Conciliar  Theory. — As  a  fourth 
illustration  Marsiglio's  teaching ll  respecting  the  church, 
which  was  later  applied  to  the  state,  will  be  given.  Mar- 
siglio  was  an  opponent  of  the  doctrine  of  Papal  suprem- 
acy and  advocated  by  preference  what  is  called  the 
conciliar  theory.  He  argued  that  the  whole  body  of  the 
membership  of  the  Christian  Church  formed  a  great 
unity  (universitas) ,  a  sort  of  corporation,  held  together 
by  common  beliefs  and  divine  revelations,  and  that  the 
supreme  power  confided  by  God  to  the  church  resided  in 
this  unity.  The  proper  representatives  of  this  unity,  he 
explained,  would  naturally  voice  the  power  of  the  unity 
and  would  presumably  delegate  minor  powers  to  a  mag- 

uln  the  Defensor  Pads,  1324. 


124      THE  STATE  AND  GOVERNMENT 

istracy  with  its  chosen  head.  In  other  words  the 
sovereign  powers  of  the  church  would  be  voiced  by  the 
General  Council  of  the  church,  which  would  delegate 
powers  to  the  Pope  and  his  administrative  assistants. 

This  argument  was  promptly  translated  into  political 
terms  and  taught  that  sovereignty  was  in  the  collective 
unity  of  people,  parliament  and  magistracy — and  not  in 
the  people  considered  as  a  collection  of  individuals;  nor 
in  the  parliament,  or  council,  since  it  was  a  body  repre- 
sentative of  the  unity;  nor  in  the  magistracy  headed  by 
the  king,  since  it  had  merely  delegated  powers  subject  to 
the  control  of  parliament.  Magistrates  are  servants, 
parliament  is  a  body  representative  "of  the  people,  for 
the  people,"  and  the  people  are  not  the  mere  individuals 
who  happen  to  be  alive,  since  the  term  includes  the  whole 
series  of  citizens  of  past  and  coming  generations  whose 
interests  along  with  their  own  should  be  voiced  by  the 
living  generation.  This  was  in  harmony  with  the  teach- 
ing of  St.  Augustine,  that  the  church  is  not  made  up  of 
the  existing  membership  only,  but  of  the  saints  who 
preceded  and  of  those  who  shall  be  members  in  later 
generations. 

This  argument  of  Marsiglio's  is  the  basis  of  the  mod- 
ern theory  of  the  state.  The  unity  which  he  emphasizes 
is  the  state  and  hence  sovereignty  is  in  the  state,  which 
is  the  nation  politically  organized.  It  is  not  in  the  gov- 
ernment, that  is,  in  parliament  and  magistracy,  together 
or  separately,  nor  even  in  the  people  in  the  sense  of  the 
existing  population.  In  every  state  there  will  be  a  gov- 
ernment and  a  people  and  if  the  government  is  truly 
representative  of  the  people  they  will  cooperate  har- 
moniously. But  the  will  of  the  state  is  not  the  passing 
whim  of  government  or  of  people  voiced  by  their  electo- 


STATE  AND  GOVERNMENT  DISTINGUISHED     125 

rate.  The  real  will  is  something  fundamental,  based  on 
the  past  and  on  the  present,  and  on  considerations  of 
what  ultimately  will  be  best  for  those  of  later  generations 
whose  interests  in  anticipation  should  be  consulted.  In 
times  of  wild  excitement,  to  be  sure,  the  electorate  and 
the  government  combined  might  seem  to  voice  the  state 
even  with  practical  unanimity,  but  when  the  morning  of 
another  day  comes  there  is  an  "appeal  from  Philip  drunk 
to  Philip  sober"  and  then  the  real  voice  of  the  people 
speaks. 

The  First  Written  Constitution. — In  recent  cen- 
turies this  notion  of  a  people  voicing  the  real  will  of  the 
state  first  came  into  prominence  in  the  English  revolu- 
tion against  Charles  I.  The  Independents,  or  Levellers, 
supported  by  a  large  part  of  the  army,  put  forth  a  series 
of  articles  12  based  on  ancient  customs  and  political  prin- 
ciples, and  including  newer  demands  of  popular  repre- 
sentation, unitedly  designed  to  become  a  paramount  law. 
This  paramount  law,  when  adopted  by  popular  approval, 
they  would  have  become  superior  to  the  will  of  Lord 
Protector  or  Parliament,  binding  on  their  actions  and 
basal  for  all  legislation.  This  proposition,  with  some 
modifications,  became  the  world's  first  written  constitu- 
tion, defining  popular  rights  and  determining  the  forms 
and  powers  of  the  new  government.  This  "Instrument 
of  Government"  as  it  was  called,  lasted  a  short  time  only, 
passing  away  at  Cromweirs  death,  but  it  was  cherished 
in  memory  and  revived  in  the  days  of  the  American  revo- 
lution, resulting  in  the  American  written  constitutions. 

Relationship  of  State  and  Government. — Perhaps 
from  these  four  sets  of  theory  and  explanation,  the 

u  See  Gardiner,  Constitutional  Documents  of  the  Puritan  Revolu- 
tion for  these  several  documents. 


126      THE  STATE  AND  GOVERNMENT 

proper  relationship  of  state  and  government  may  be 
seen.  The  king,  as  the  head  of  the  magistracy  (the 
executive  and  judicial  departments)  is  never  the  state 
and  rarely  if  ever  could  be  considered  as  voicing  the  will 
of  the  state.  If  the  supremely  wise  man  of  Plato  or 
Aristotle  were  king,  presumably  he  might  voice  the  state, 
but  kings  are  rarely  wise  and  seldom  truly  representative. 
Probably  no  human  being  that  ever  lived  was  big  enough 
adequately  to  voice  his  state,  so  that  personal  govern- 
ment is  never  advisable.  Government  should  be  the  rule 
of  law  not  of  a  man  or  men.  When  kings  are  autocratic, 
they  voice  not  the  state  but  a  ruling  class,  the  interests  of 
the  masses  being  disregarded,  so  that  the  presumption  is 
regularly  against  autocracies  and  even  more  so  against 
despotic  monarchies. 

In  the  same  fashion  a  parliament  does  not  necessarily 
represent  the  wish  of  the  state,  because  it  also  may  voice 
a  ruling  class,  an  oligarchy,  rather  than  the  real  state. 
Even  a  government  elected  by  a  majority  of  the  popula- 
tion is  not  necessarily  a  true  representative  of  the  state, 
though  the  presumption  should  be  in  its  favor.  The 
majority  vote  may  voice  a  mob  spirit  and  the  minority 
may  by  contrast  represent  the  best  and  most  valuable 
part  of  the  state.  The  rule  of  a  temporary  majority  may 
be  fully  as  despotic  as  that  of  any  king,  just  as  the  ex- 
tremes of  Bolshevism  are  worse  than  the  worst  excesses 
of  any  tsar. 

An  important  political  problem,  therefore,  is  the  prob- 
lem of  trying  to  form  a  representative  body  that  may 
truly  be  able  to  formulate  the  will  of  the  state,  since  it 
often  happens  that  the  body  legally  authorized  to  formu- 
late the  will  of  the  state  does  not  fully  represent  the  true 
interests  of  the  state.  In  that  case  we  have  an  issue 


STATE  AND  GOVERNMENT  DISTINGUISHED     127 

between  what  is  legal  and  what  is  morally  right.  If  the 
government  is  so  firmly  intrenched  that  political  agita- 
tion cannot  move  it,  then  the  movement  may  end  in  revo- 
lution, since  nothing  is  really  settled  until  it  is  settled 
right.  The  fundamental  will  when  formulated  becomes 
the  constitution,  the  paramount  law,  superior  to  govern- 
ment because  it  dictates  what  form  government  should 
take  and  what  powers  the  several  parts  or  divisions  of 
government  may  exercise.  The  body  that  expresses  the 
sovereign  will  of  the  state  in  the  formulation  of  the  con- 
stitution, whether  it  be  rightly  or  wrongly  constituted, 
may  be  called  the  legal  sovereign  and  defined  as  that  per- 
son or  body  of  persons  having  the  legal  right  (and  pref- 
erably the  moral  right)  to  make,  revise,  or  amend  the 
constitution  of  a  state. 


CHAPTER  IX 

THE   LEGAL   SOVEREIGN    AND  THE    CONSTITUTION 

THE  LEGAL  SOVEREIGN 

The  Constitution  of  the  State. — If  one  were  care- 
fully to  observe  in  any  given  state  the  several  divisions 
of  government,  and  to  note  the  fundamental  powers 
respectively  exercised  by  each,  and  the  manner  of  such 
exercise,  he  would  thereby  become  familiar  with  the 
fundamental  law,  or  the  constitution  of  the  state.  Every 
state,  whether  democratic  or  autocratic,  has  a  constitu- 
tion. This  is  not  the  same  as  saying  that  every  state 
has  a  constitutional  form  of  government,  which  would 
imply  that  the  rights  of  the  people  were  fairly  well 
secured  by  law  against  possible  governmental  tyranny. 
It  is,  however,  obvious  that  every  state,  no  matter  how 
despotic  or  autocratic  its  government  may  be,  has  a  form 
of  organization,  made  up  of  several  governmental 
divisions  exercising  sovereign  powers,  and  that  these 
have  a  well-defined  customary  way  of  exercising  their 
powers.  Such  constitutions  may  not  be  written,  and  in 
some  states  are  not,  yet  jurists  familiar  with  any  given 
state  could  readily  write  out  a  statement  of  what  is  the 
constitution  of  that  state,  no  matter  whether  its  govern- 
ment be  an  autocracy,  a  federation,  or  a  democracy. 
Every  state,  then,  from  the  moment  when  it  begins  its 
existence  has  a  constitution,  which  may  be  defined  as  that 

128 


THE  LEGAL  SOVEREIGN  129 

fundamental  law  or  body  of  laws,  written  or  unwritten, 
in  which  may  be  found  (a.)  the  form  of  the  organization 
of  the  state,  (b)  the  extent  of  power  intrusted  to  the 
various  agencies  of  the  state,  and  (c)  the  manner  in 
which  these  powers  are  to  be  exercised. 

The  Constitution  as  the  Expression  of  Dominant 
Interests. — Such  a  constitution  regularly  voices  the 
will  of  the  dominant  part  of  the  community,  i.  e.,  that 
part  which  contains  the  strength,  wealth,  and  intelligence 
of  the  nation.  The  persons  who  compose  this  dominant 
part  will  not  necessarily  themselves  formulate  the  funda- 
mental law  of  the  state,  but  by  formal  appointment  or 
tacit  consent  they  will  permit  some  person  or  body  of 
persons  to  make  provisions  for  the  framework  of  the 
organization  of  the  state  and  the  powers  to  be  exercised 
by  its  several  agencies.  In  a  well-ordered  state  the  con- 
stitution will  fully  and  exactly  voice  the  wish  and  will 
of  the  entire  community,  but  generally  that  is  rather  the 
ideal  than  the  rule.  In  practice  the  constitution  will  rep- 
resent, as  already  said,  the  will  of  the  dominant  part 
of  the  community,  often  to  the  neglect  and  even  to  the 
injury  of  the  interests  of  the  other  members  of  the  body 
politic.  The  aim  of  democracy  is  to  develop  a  constitu- 
tional system  voiced  in  the  composition  of  the  lawmaking 
body  that  will  allow  all  the  interests  of  the  nation  to  be 
adequately  provided  for  in  the  constitution.  Whether 
these  interests  can  best  be  voiced  by  polling  the  individu- 
als of  the  nation,  or  by  devising  some  system  of  repre- 
sentation of  interests,  or  by  seeking  to  combine  for  joint 
action  both  people  and  representatives,  is  still  a  matter 
of  discussion.  Modern  democratic  movements  working 
toward  some  system  of  minority  or  proportional  repre- 
sentation illustrate  one  aspect  of  this  question.  The 


130      THE  STATE  AND  GOVERNMENT 

Russian  principle  of  "all  power  to  the  Soviets,"  or  the 
"interests"  theory  of  guild  socialism  or  syndicalism,  are 
modern  movements  aiming  at  a  more  complete  expres- 
sion of  state  will  than  is  possible  in  many  modern  systems 
of  government. 

The  Legal  Sovereign. — As  a  state  in  the  exercise  of 
its  sovereignty  may  have  occasion  from  time  to  time  to 
amend  or  even  to  revise  entirely  its  constitution,  so  as  to 
adapt  its  life  to  newer  conditions,  there  must  be  in  every 
state  a  person  or  body  of  persons  recognized  as  having 
the  legal  right  to  perform  such  a  function.  This  agency 
of  the  state  voicing  its  will  in  the  enunciation  of  its 
fundamental  law,  is  the  legal  sovereign.  The  legal  sov- 
ereign, then,  in  the  exercise  of  its  power  decides  the  form 
of  the  organization  of  the  state,  assigns  powers  to  the 
several  departments  of  government,  and  may  prohibit 
the  exercise  of  some  powers  or  designate  the  manner 
in  which  the  several  powers  assigned  must  be  exercised. 
It  may  even  specify  the  manner  in  which  it  will  exercise 
its  own  powers,1  but  such  specifications  must  be  consid- 
ered as  constitutional  guaranties,  not  as  permanent  limi- 
tations on  its  activity.  In  other  words,  the  legal 
sovereign  voicing  as  it  does  the  absolute  sovereignty  of 
the  state  cannot  legally  bind  itself  not  to  exercise  any 
part  of  sovereignty.  It  may  give  a  formal  pledge  in  the 
nature  of  a  limitation  of  its  powers,  but  the  binding  force 
is  moral,  not  legal;  in  case  of  real  necessity  it  should 
disregard  its  formal  limitations  lest  the  state  die  through 
the  "dead  hand"  of  obsolete  precedents.  A  legal  sov- 
ereign unable  to  perform  its  sovereign  function  would  be 
limited  in  its  powers,  and  hence  not  the  agency  through 

*The  Amending  Article  of  Constitutions.  See,  for  example,  Ar- 
ticle V,  Constitution  of  the  United  States  of  America. 


THE  LEGAL  SOVEREIGN  131 

which  the  state  enunciates  its  fundamental  wish — the 
constitution. 

In  exercising  this  great  power,  the  legal  sovereign 
should  represent  the  will  of  the  nation,  and,  as  a  rule,  it 
does  more  or  less  fully  voice  the  desires  of  the  people  as 
a  whole.  As,  however,  the  conditions  that  determine  the 
development  of  states  are  constantly  changing,  a  legal 
sovereign  designed  in  one  age  to  express  the  will  of  the 
body  politic,  may  in  a  later  age  fail  to  represent  correctly 
that  will.  In  such  a  case  if  the  legal  sovereign  of  its  own 
accord  fails  to  modify  its  composition,  or  the  funda- 
mental law,  so  as  to  suit  newer  conditions,  a  revolution 
will  probably  take  place  after  a  period  of  dissatisfaction 
and  agitation.  This  is  the  so-called  right  of  revolution, 
the  right  of  a  community  which  finds  itself  hindered  in 
development  by  existing  forms,  to  overthrow  these  and 
substitute  others  more  in  accordance  with  the  will  of  the 
community.  Such  a  right  must,  of  course,  be  justified 
on  moral  grounds;  legally  speaking  all  revolutions  are 
rebellions  and  in  violation  of  law.2 

Location  of  Legal  Sovereignty. — In  old-fashioned 
monarchies  the  legal  sovereignty  will  naturally  be  found 
vested  absolutely  in  the  king,  or  in  the  king  and  his  coun- 
cil, under  the  theory  that  these  truly  represent  the  larger 
interests  of  the  state.  In  such  cases  the  king,  or  the  king 
and  his  council,  may  alter  at  will  the  fundamental  law  of 
the  land.  The  inertia  of  custom  and  the  fear  of  revolu- 
tion or  assassination  may  deter  the  king  from  making  un- 
popular alterations,  but  if  any  changes  at  all  are  legally 
to  be  made,  he  is  the  proper  agency  to  decide7  on  and  to 


"Note  the  first  two  paragraphs  of  the  American  Declaration  of 
Independence;  but  for  a  legal  basis  for  rebellion  see  Article  61, 
Magna  Charta. 


132      THE  STATE  AND  GOVERNMENT 

enunciate  them.  The  modern  constitution  of  Japan,  for 
example,  came  as  a  grant  of  privileges  from  the  Em- 
peror to  his  people.  If  in  such  a  state  a  representative 
council  or  a  legislature  should  develop,  this  body  may 
gain  the  right  to  share  in  the  exercise  of  this  power,  and 
the  three  bodies,  king,  council,  and  legislature  would  then 
form  the  legal  sovereign,  as  in  England.3  In  a  similar 
manner  the  powers  of  the  legal  sovereign  may  pass  en- 
tirely from  the  head  of  the  state  to  the  lawmaking  body, 
as  in  France,  or  to  the  lawmaking  body  and  the  elec- 
torate, as  in  Switzerland.  In  a  federative  form  of  gov- 
ernment, the  federal  lawmaking  body,  combined  with  the 
lawmaking  bodies  of  the  federated  commonwealths,  may 
constitute  the  legal  sovereign,  as  in  the  national  system 
of  the  United  States  of  America.  If  the  state  be  com- 
pletely democratic,  the  electorate  alone  would  exercise 
that  power.  This  stage  has  almost  been  reached  in 
Switzerland,  through  the  use  of  the  initiative  and  the 
referendum,  and  in  the  commonwealths  of  the  United 
States  of  America  through  the  use  of  a  democratically 
organized  constitutional  convention. 

In  respect  to  legal  sovereignties  located  in  lawmaking 
bodies,  as  in  Great  Britain,  France,  and  the  United 
States,  it  might  properly  be  maintained  that  the  elec- 
torate also  should  be  considered  as  legally  a  part  of  the 
legal  sovereign,  so  far  as  it  has  the  right  to  determine 
by  election  the  membership  of  the  parliament  or  legisla- 
tive body.  This  would  certainly  be  true  if  the  electorate 
had  also  the  right  of  instruction  and  of  recall.  If,  how- 
ever, the  lawmaking  body,  when  elected,  has  full  discre- 

'That  is,  the  king  in  parliament;  the  ancient  council  has  become 
the  House  of  Lords,  and  the  members  of  the  modern  cabinet  are 
also  members  of  parliament. 


THE  LEGAL  SOVEREIGN  133 

tion  in  respect  to  its  policy,  irrespective  of  instructions 
from  constituencies,  it  may  be  better,  on  the  whole,  to 
consider  that  body  for  all  practical  purposes  as  the  legal 
sovereign. 

In  an  absolute  form  of  government  the  personal  sov- 
ereign will  also  be  the  legal  sovereign,  but  the  double 
aspect  of  the  sovereign  under  such  conditions  is  clear. 
Similarly,  if  a  legislature  happens  to  be  also  the  legal 
sovereign,  it  is  possible  to  distinguish  between  the  legis- 
lature as  a  constituent  and  as  a  legislative  body.4  Like- 
wise, in  a  democracy  the  electorate  is  the  legal  sovereign 
only  when  it  directly  exercises  the  powers  of  the  legal 
sovereign.  In  the  national  system  of  the  United  States  of 
America,  for  example,  the  electorate  is  not  legally  sover- 
eign, for  the  Constitution  vests  the  power  of  amendment 
in  the  national  Congress  and  the  legislatures  of  the  forty- 
eight  commonwealths.  The  electorate  may  request  these 
to  pass  amendments,  but  has  no  power  to  command  them 
so  to  do.  Theoretically,  these  lawmaking  bodies  might 
at  their  discretion  change  the  republic  into  an  empire  or 
into  a  socialistic  form  of  government,  without  consult- 
ing at  all  the  wishes  of  the  electorate.  The  same  illus- 
tration might  apply  in  the  case  of  Great  Britain.  The 
legal  sovereign  is  the  King  in  Parliament,  and  action 
taken  by  this  body  is  legally  final,  irrespective  of  the 
wishes  of  the  electorate. 

In  a  study  of  the  practical  workings  of  government, 
one  may  see  that  an  autocratic  ruler  will  make  no  im- 
portant change  in  the  Constitution  without  first  consult- 
ing his  advisory  officers;  that  the  will  of  the  King  in 

4  In  the  United  States  the  President,  for  example,  may  veto  acts 
of  Congress,  but  he  has  no  veto  power  over  amendments  to  the 
Constitution  passed  by  Congress. 


134      THE  STATE  AND  GOVERNMENT 

Parliament  may  be  virtually  expressed  by  the  leadership 
of  a  dominant  political  party  in  the  House  of  Commons; 
that  American  lawmaking  bodies  will  carefully  consult 
popular  wishes  before  passing  constitutional  amend- 
ments; and  that  countless  other  restrictive  influences  are 
brought  to  bear  on  the  personnel  composing  the  legal 
sovereign.  Such  matters  of  practical  politics  must  be 
carefully  studied  before  one  can  fully  understand  the  po- 
litical system  of  a  state,  but  after  all  there  is  a  wide  dif- 
ference in  idea  between  the  legal  right  to  accomplish  con- 
stitutional changes,  and  the  sum  total  of  all  the  factors 
and  motives  that  may  enter  into  the  formulation  of  such 
changes. 

Revolutionary  Origin  of  the  Legal  Sovereign. — 
The  legal  sovereign  often  has  a  revolutionary  origin,  and 
may  frequently  undergo  changes  in  composition.  For 
instance,  the  legal  sovereign  in  the  American  Colonies 
before  1776  was  the  King  in  Parliament.5  The  Dec- 
laration of  Independence  and  the  action  of  the  Colonies 
made  these  from  the  American  standpoint  free  and  in- 
dependent states,  held  together  loosely  in  a  confederation. 
These  states  in  congress  assembled  agreed  to  adopt  a 
constitution,  provided  all  the  states  gave  their  consent. 
When  this  had  been  accomplished,  by  1781,  the  legal 
sovereign  of  the  confederation  was  the  several  states 
acting  formally  through  the  Congress  by  unanimous  con- 
sent. When  revision  became  urgent,  the  Convention  of 
1787,  knowing  the  impossibility  of  securing  unanimous 
consent  to  the  proposed  Constitution,  suggested  that  it 
go  into  effect  provided  nine  of  the  thirteen  states  gave 
their  consent.  The  adoption  of  this  suggestion  and  its 
accomplishment  amounted  virtually  to  a  peaceful  revolu- 
6  Or,  as  argued  by  some,  the  King  in  Council. 


THE  LEGAL  SOVEREIGN  135 

tion  and  the  establishment  of  a  new  legal  sovereign.  The 
Constitution  adopted,  however,  provided  that  future 
alterations  should  be  made  by  the  joint  consent  of  Con- 
gress and  of  the  legislatures  of  the  States,6  or  of  conven- 
tions especially  called  for  that  purpose.  This  constituted, 
therefore,  a  new  legal  sovereign,  so  that  at  the  present 
time  no  legal  amendment  or  revision  of  the  national  Con- 
stitution is  possible,  except  by  the  joint  action  of  these 
lawmaking  bodies. 

The  Constitutional  Convention. — In  most  of  the 
commonwealths  of  the  United  States  of  America  Rous- 
seau's theory  that  the  people  should  legally  secure  them- 
selves against  governmental  tyranny  has  found  full 
development.  The  early  practice  of  the  commonwealths 
was  to  assume  that  the  legislature  or  assembly  had  con- 
stituent as  well  as  legislative  powers,  but  this  ran  counter 
to  the  rising  tide  of  democracy.  The  importance  of  a 
written  constitution  embodying  a  fundamental  law  su- 
perior to  the  statutes  of  a  legislature,  and  hence  made  by 
a  body  apart  from  the  legislature,  was  soon  recognized. 
In  order  that  the  electorate  voicing  popular  interests 
might  more  completely  control  this  law,  the  constitu- 
tional convention  was  brought  into  use  and  developed. 
This  agency,  elected  directly  by  the  voters  and  submit- 
ting its  work  to  them  for  approval,  has  proved  remark- 
ably efficacious  in  securing  popular  rights.  The  effect  of 
it  is  that,  whereas  in  the  national  system  legal  sovereignty 
inheres  in  the  lawmaking  bodies  of  the  Federal  Govern- 
ment and  the  States,  in  most  of  the  commonwealths 
themselves  the  fundamental  law  is  controlled  by  the 
electorate,  through  the  convention  and  the  referendum. 

"By  a  vote  of  two-thirds  of  each  House  of  Congress,  and  of  the 
legislatures  of  three-fourths  of  the  States.  Article  V. 


136      THE  STATE  AND  GOVERNMENT 

In  consequence,  the  real  development  of  American  de- 
mocracy should  be  studied,  not  so  much  in  the  national 
system,  as  in  the  local  systems  of  the  States,  which  illus- 
trate much  more  clearly  the  virtues  and  defects  of  a 
popular  democracy.7 

THE  WRITTEN  CONSTITUTION 

The  Importance  of  Constitutions. — Since  the 
function  of  the  legal  sovereign  is  to  formulate  the  con- 
stitution or  to  revise  or  amend  it,  it  may  be  well  to  ex- 
plain more  fully  the  importance  of  the  constitution  as 
the  basis  for  governmental  organization,  stressing  in 
illustration  the  written  constitution.  In  the  Revolution- 
ary period  of  the  United  States  of  America  the  dangers 
inherent  in  a  too  powerful  lawmaking  body  were  recog- 
nized, and  steps  were  taken  to  provide  a  remedy.  The 
chief  device  evolved  for  this  purpose  was  the  written 
constitution,  representing  a  new  development  in  legis- 
lation. The  origin  of  this  idea  seems  to  be  threefold. 

I.  The  Contract  Theory. — In  all  confederations, 
ancient  and  modern,  there  is  need  for  a  sort  of  formal 
compact,  which  may  or  may  not  be  written,  in  which  will 
be  set  forth  the  purpose  and  organization  of  the  confed- 
eration and  the  powers  intrusted  to  it.  The  same  prin- 
ciple is  seen  in  the  charters  granted  by  King,  proprietor, 
or  trading  company  to  those  colonists  who  settled  along 
the  Atlantic  coast.  The  idea  also  is  found  in  the  con- 
stitution of  the  New  England  Colonies  adopted  by  the 
Confederation  of  1643-1683,  and  in  the  abortive  union 
of  the  Albany  Convention  in  1754.  The  essence  of  this 
notion  is  very  like  a  treaty.  Parties  somewhat  suspicious 

1  See  the  author's  Growth  of  American  State  Constitutions. 


THE  WRITTEN  CONSTITUTION  137 

of  one  another's  motives  and  anxious  to  retain  their 
rights,  yet  desirous  of  securing  themselves  as  much  as 
possible  against  common  dangers  and  stimulated  by  the 
hope  of  greater  power  and  importance  through  unified 
policies,  form  agreements  and,  for  the  sake  of  greater 
security,  place  them  in  writing.  This  idea  is  plainly 
seen  in  the  American  Constitutions  of  1781  and  1789, 
and  finds  modern  expression  in  such  documents  as  those 
of  the  German  Republic  and  in  Australia  or  the  Union 
of  South  Africa.  Naturally,  the  contract  theory  of  the 
eighteenth  century  powerfully  stimulated  the  formation 
of  such  compacts  or  contracts  in  the  American  Colonies. 

II.  The    Constitution    as    Fundamental    Law, — In 
ancient  and  mediaeval  discussions  of  law  there  was  a 
constant  assumption  of  a  fundamental  law,  as  distinct 
from  the  petty  ordinances  or  ephemeral  legislation  de- 
manded by  daily  exigencies.    This  fundamental  law  was 
thought  of  sometimes  as  divine,  revealed  to  man  for  his 
guidance;  or  as  cosmic  principles  of  right  and  justice, 
eternal  in  the  universe ;  or  as  basal  customs,  wrought  out 
through  many  generations  of  human  experience.8    Unit- 
edly these  would  form  a  body  of  law,  fixed  and  im- 
mutable, in  contrast  to  the  constantly  changing  content 
of  tyrannical  whim  or  the  votes  of  the  fickle  multitude. 

III.  The  Constitution  as  a  Check  on  Government. — 
The  third  notion  involved  in  the  written  constitution  is 
that  of  a  check  on  the  powers  of  government,  so  as  to 
prevent  possible  despotism.    This  idea  also  derived  much 
of  its  strength  from  the  famous  contract  theory  of  mod- 
ern times.    Its  early  development  in  this  country  may  be 
traced  to  the  Mayflower  Agreement  (1620)  and  to  the 

8  See  pages  121-122. 


138      THE  STATE  AND  GOVERNMENT 

Fundamental  Orders  of  Connecticut  (1639).  The  idea 
can  be  traced  in  England  from  the  Revolution  of  the 
seventeenth  century  under  Cromwell.  At  that  time,  as 
already  partly  explained,  the  radical  wing  of  the  revo- 
lutionary party  insisted  that  there  should  be  adopted  a 
fundamental  law,  paramount  over  Parliament,  contain- 
ing in  it  provisions  safeguarding  the  rights  and  liberties 
of  Englishmen  and  providing  for  the  organization  of  a 
government  after  a  plan  set  forth  in  the  constitution. 
This  demand  culminated  in  the  adoption  of  the  first 
written  constitution,  the  Instrument  of  Government, 
which  was  put  into  operation  in  1653  but  was  soon  modi- 
fied and  finally  disappeared  at  the  Restoration.9  This 
idea  of  a  fundamental  law,  however,  continued  to  be 
discussed  in  political  writings  and  was  well  known  in 
America  through  the  works  of  Harrington  and  Sydney. 
It  found  its  way  into  the  early  constitutions,  along  with 
other  restrictions  on  government  in  the  form  of  "bills 
of  rights."  Then,  as  the  tyranny  of  legislatures  became 
manifest,  Massachusetts  hit  on  the  happy  expedient  of 
summoning  a  special  convention  made  up  of  elected  dele- 
gates authorized  to  draw  up  a  constitution  which,  when 
prepared,  would  be  submitted  to  the  electorate  for  their 
approval  or  rejection.  Thus,  by  making  the  revision  of 
a  constitution  through  a  convention  cooperating  with 
the  wishes  of  the  electorate,  there  was  secured  a  law 
above  the  legislature,  which  body  would,  in  fact,  be 
bound  by  the  provisions  set  forth  in  the  constitution. 
This  combination  of  convention  and  electorate  should 
naturally  approximate  quite  closely  to  a  true  expression 

9  See  Borgeaud,  Rise  of  Modern  Democracy,  for  an  interesting 
account  of  its  history.  Also  Gooch,  History  of  Democratic  Ideas 
in  the  Seventeenth  Century. 


THE  WRITTEN  CONSTITUTION  139 

of  the  will  of  the  state.  From  that  time  the  constitu- 
tional convention  has  been  a  popular  instrument  whereby 
checks  and  restrictions  of  all  sorts  may  be  placed  through 
the  constitution  on  the  powers  of  the  several  depart- 
ments of  government. 

Growing  Importance  of  the  Written  Constitution. 
— Since  the  American  Revolution,  the  written  constitu- 
tion has  become  increasingly  important  as  a  factor  in 
political  development.  Its  use  in  political  systems  is  con- 
stantly growing,  whether  in  the  form  of  a  treaty  com- 
pact or  a  statement  of  fundamentals  or  regulation  of 
governmental  powers  or  of  all  these  combined.  It 
passed  to  France  also  in  the  Revolutionary  period,  and 
spreading  from  these  two  great  centers  of  political  in- 
fluence, the  written  constitution  has  become  the  form  of 
fundamental  law  throughout  all  of  the  Americas,  in 
Japan  and  China,  and  in  most  of  the  states  of  Europe. 
The  written  constitution  may,  as  in  France,  consist  of  a 
very  few  fundamental  provisions,  too  important  to  be 
treated  as  ordinary  legislation,  or  may  consist  of  a  prac- 
tically complete  statement  of  fundamentals,  as  in  the 
national  Constitution  of  the  United  States  of  America, 
or,  as  in  the  commonwealths  of  the  American  Union  the 
provisions  of  the  constitutions  may  be  elaborated  in  great 
detail. 

American  National  Constitution. — In  the  United 
States  the  national  Constitution  differs  in  several  re- 
spects from  the  constitutions  of  the  forty-eight  com- 
monwealths. It  provides  for  the  organization  of  a 
Federal  Government  of  three  divisions,  legislative,  execu- 
tive, and  judicial;  it  assigns  powers  to  each  of  these  and 
to  some  extent  regulates  procedure,  as,  for  example,  in 
respect  to  the  veto.  The  assignment  of  these  powers  is 


140      THE  STATE  AND  GOVERNMENT 

based  on  Montesquieu's  theory  of  the  separation  of  pow- 
ers, there  being  three  sets  of  officials,  each  having  its 
own  proper  set  of  functions,  and  all  united  by  a  check 
and  balance  system.  The  Federal  Government  may  use 
no  powers  not  expressly  assigned  or  implied  from  those 
assigned. 

Constitutions  of  the  Commonwealths. — As  for  the 
commonwealths  (States)  they  may  use  all  the  remaining 
powers  of  the  United  States  of  America,  omitting,  that 
is,  those  belonging  to  the  Federal  Government,  unless  in 
the  national  Constitution  there  are  prohibitions  on  their 
use,  as,  for  example,  the  prohibitions  contained  in  Article 
I,  $ed:ion  io.10  This  statement  of  the  sphere  of  powers 
is  contained  in  Article  X  of  the  Amendments  which 
reads : 

The  powers  not  delegated  to  the  United  States  [the  Fed- 
eral Government]  by  the  Constitution,  nor  prohibited  by  it 
to  the  States,  are  reserved  to  the  States  respectively  or  to 
the  people. 

In  the  American  system,  therefore,  the  national  Con- 
stitution specifies  what  powers  may  be  used  by  the  three 
usual  departments  of  government  and  delegates  the  re- 
mainder with  some  exceptions  to  the  States.  Each  of 
these  in  its  constitution  provides  for  the  organization 
and  powers  of  its  three  departments  and  defines  who 
shall  compose  the  electorate.  Any  changes  in  the  system 
can  be  made  only  by  revision  of  or  an  amendment  to 
the  national  Constitution.  The  advantage  of  this  system 

10  "No  State  shall  enter  into  any  treaty,  alliance,  or  confederation ; 
grant  letters  of  marque  and  reprisal;  coin  money;  emit  bills  of 
credit;  make  anything  but  gold  and  silver  coin  a  tender  in  pay- 
ment of  debts ;  pass  any  bill  of  attainder,  ex  post  facto  law,  or  law 
impairing  the  obligation  of  contracts,  or  grant  any  title  of 
nobility." 


THE  WRITTEN  CONSTITUTION  141 

is  obvious.  If  the  Government  had  full  sovereign  pow- 
ers, it  might  easily  become  autocratic  and  despotic.  But 
since  the  Constitution  specifies  just  what  powers  the 
Government  may  use,  it  is  equivalent  to  a  sort  of  guar- 
anty that  the  Government  will  be  on  its  good  behavior. 
By  theory  no  division  of  Government  should  transgress 
the  bounds  set  for  it;  such  action  would  be  illegal  and 
revolutionary. 

The  Amendment  of  Constitutions. — The  inconven- 
ience of  reserving  powers  that  cannot  be  used  by  the 
Government  in  case  of  necessity,  such  as  the  prohibitions 
on  the  States,  is  met  by  providing  in  the  national  Con- 
stitution a  set  procedure  in  accordance  with  which 
amendments  or  even  complete  revisions  may  be  made. 
The  length  of  time  needed  to  make  such  alterations  gives 
opportunity  for  discussion,  and  the  necessity  of  the 
change,  therefore,  must  become  clearly  manifest.  If  in 
time  of  war  or  great  danger  a  reserved  power  must  at 
once  be  brought  into  use,  and  the  crisis  does  not  allow 
time  to  make  the  necessary  amendments,  then  probably 
the  Government  would,  under  the  war  or  police  power, 
exert  any  authority  needed,  and  after  the  crisis  would 
presumably  revert  to  former  conditions.  Then,  if  neces- 
sary, the  Constitution  may  be  amended  at  leisure.11 

From  one  standpoint  the  most  important  part  of  a 
written  constitution  is  the  provision  regulating  its  amend- 
ment and  revision.  If  such  a  provision  is  lacking,  then 
the  written  constitution  hardly  differs  from  a  statute 
and  presumably  can  be  amended,  revised,  or  repealed  by 
the  ordinary  channels  of  legislation.12 

"Lincoln's   Emancipation   Proclamation,   followed  by  the  Thir- 
teenth Amendment,  is  a  good  illustration  of  this  process. 
"Italy's  Constitution,  for  example,  is  of  this  sort 


142  THE  STATE  AND  GOVERNMENT 

Amendment  of  State  Constitutions. — In  the  early 
American  written  state  constitutions  such  an  omission 
was  common,  but  as  the  importance  of  a  written  funda- 
mental law  became  manifest,  provisions  were  inserted 
which  authorized  the  ordinary  lawmaking  bodies  by 
special  procedure  to  make  amendments.  This  special 
procedure  involved  greater  deliberation  and  a  larger  vote 
for  the  passage  of  amendments,  under  the  theory  that  a 
fundamental  law  should  be  changed  as  little  and  as  sel- 
dom as  possible.  Legislatures  occasionally  have  used 
commissions,  authorized  to  make  recommendations  of 
amendment  for  legislative  consideration.13  As  popular 
democracy  developed  in  the  United  States  of  America, 
it  was  held  that  not  merely  the  representatives  of  the 
people  but  the  people  themselves  should  have  a  direct 
voice  in  the  amending  of  the  fundamental  law.14  This 
brought  about  the  submission  of  amendments  by  referen- 
dum to  the  electorate  for  their  approval  or  rejection. 
Experience  also  showed  that  legislatures  were  not  always 
eager  to  initiate  amendments,  especially  if  such  amend- 
ments tended  to  deprive  them  of  power;  hence  came  the 
further  provision  that  constitutions  should  be  revised,  not 
by  legislatures,  but  by  a  convention  especially  called  for 
that  purpose.  As  it  might  be  possible  for  a  legislature  to 
refuse  to  call  a  convention,  or  to  arrange  its  composition 
in  such  a  way  as  to  defeat  popular  demands,15  provisions 
were  later  inserted  in  some  constitutions  that  a  conven- 
tion should  be  called  at  stated  intervals,  or  that  a  referen- 

13  See   Index  of   author's   Growth  of  State  Constitutions  under 
heading,  Commissions. 

14  For  the  use  of  the  initiative  and  referendum  in  the  amending 
of  constitutions,  see  pages  300-302. 

^The  Connecticut  Convention  of  1901  is  an  illustration  of  this 
point.     See  Growth  of  State  Constitutions,  p.  102. 


THE  WRITTEN  CONSTITUTION  143 

dum  be  submitted  asking  whether  a  convention  should 
or  should  not  be  called,  and  providing  also  that,  if  called, 
the  membership  shoufrhbe  arranged  on  the  basis  of  popu- 
lation. By  such  devices  the  convention  has  in  many  com- 
monwealths of  the  United  States  of  America  come  to  be 
an  agency  through  which  the  electorate  may  ( i )  outline 
the  framework  of  government  and  delegate  powers  to 
the  several  divisions,  and  (2)  issue  mandates  to  their 
delegates  in  the  legislature  instructing  them  to  pass 
needed  legislation.  In  this  way  the  constitutional  con- 
vention has  become  a  most  efficient  means  of  enabling 
popular  demands  to  control  legislation.  This  tendency 
toward  democratic  influence  has  been  aided  by  a  lessen- 
ing of  the  rigidity  of  the  process  of  amendment  so  as  to 
allow  constitutional  provisions  to  be  inserted  with  com- 
parative ease.  As  a  rule,  in  the  commonwealths  an 
amendment  may  now  be  passed  by  a  two-thirds  vote 
of  both  houses  of  the  legislature  and  a  majority  vote  of 
those  voters  voting  thereon  when  submitted  by  referen- 
dum.16 By  contrast,  the  amending  clause  of  the  national 
Constitution  is  so  rigid  that  the  document  is  difficult  of 
alteration.  Only  seven  amendments  have  been  made  since 
1804,  and  three  of  these  were  forced  through  during  the 
period  of  reconstruction. 

Usual  Provisions  of  State  Constitutions. — The 
written  constitution  of  the  commonwealths  regularly  has 
a  preamble  or  statement  of  reasons  and  purposes,  an 
enacting  and  a  ratifying  clause  and  a  schedule  or  section 
embracing  provisions  of  temporary  importance.  The 
constitution  proper  may  contain,  in  addition  to  the  or- 
ganization and  powers  of  the  three  divisions  of  govern- 
ment, a  bill,  or  declaration,  of  personal  rights  in  life  and 
16  See  Growth  of  State  Constitutions,  Chapter  XI. 


144      THE  STATE  AND  GOVERNMENT 

property  guaranteed  to  citizens.  Such  rights  thereby  be- 
come restrictions  on  the  government  and  prove  a  safe- 
guard against  tyranny.  In  the  American  system  the  best 
formal  statements  of  such  rights  may  be  foun4  in  the 
constitutions  of  Virginia  and  Massachusetts.  The  length 
of  constitutions  naturally  will  vary  with  conditions.  The 
bare  framework  of  government  can  be  set  forth  in  a  few 
hundred  words,  but  it  may  be  elaborated  in  detail  for 
prudential  reasons,  so  as  virtually  to  include  everything 
seemingly  important.  Details  of  organization,  long 
series  of  limitations  on  governmental  powers  and  man- 
dates of  all  sorts  may  lengthen  out  the  document  inter- 
minably. The  present  Louisiana  constitution,  for 
example,  consists  of  over  forty  thousand  words.  The 
constitution  of  the  State  of  Oklahoma  is  nearly  a  third 
larger.  This  tendency  is  not  due  to  a  failure  to  appre- 
ciate the  distinction  between  fundamental  and  ordinary 
law,  but  is  due  to  a  widespread  distrust  of  the  legisla- 
tures. The  remedy  is  not  necessarily  to  insist  on  the 
reduction  of  the  length  of  constitutions,  though  that 
should  be  done,  but  to  improve  the  quality  of  legislatures, 
so  as  to  render  unnecessary  so  many  checks  on  their 
powers.17  These  bodies  now  find  themselves  limited  in 
power  and  restricted  and  regulated  in  every  possible  way 
by  constitutional  provisions  which  they  cannot  override. 
This  tendency,  if  it  continues,  will  result  in  making  the 
convention  the  really  important  legislative  body,  leaving 
to  the  assembly  the  power  merely  to  work  out  in  detail 
the  principles  set  forth  in  the  constitution.  In  other 
words,  the  assembly  will  become  a  sort  of  department  of 
administration  especially  set  apart  for  the  formulation  of 
ordinances. 
17  See  Growth  of  State  Constitutions,  Chapter  XXI. 


THE  WRITTEN  CONSTITUTION  145 

How  a  Constitution  is  Made. — In  the  making  of  a 
written  constitution,  the  constitutional  convention,  an 
especial  body  chosen  for  that  purpose,  is  usually  em- 
ployed. But  there  are  exceptions.  England  makes  no 
distinction  in  procedure  between  constitutional  and  ordi- 
nary legislation,  so  that  either  sort  of  law  is  made  by  act 
of  Parliament.  In  Japan  the  constitution  came  as  a 
grant  of  powers  from  the  Emperor  to  his  subjects,  as 
was  the  case  also  in  the  Russian  constitution  of  1906 
under  the  tsar.  In  France  the  bicameral  assembly  meets 
as  a  unicameral  national  assembly  and  with  special  pro- 
cedure acts  on  constitutional  changes.  These  are  not 
submitted  to  referendum.  The  German  Republic  held  a 
constituent  assembly  at  Dresden,  February  6- July  31, 
1919,  for  the  formulation  of  the  present  constitution,  but 
this  was  not  submitted  to  the  electorate  on  referendum 
but  became  effective  by  executive  order  on  August 
eleventh.  In  the  national  system  of  the  United  States  of 
America  changes  are  effected  by  the  lawmaking  bodies 
of  the  Federation  and  the  commonwealths.  Such 
changes,  however,  are  not  subject  to  executive  veto,  as 
in  the  case  of  ordinary  legislation.  These  illustrations 
indicate  possibilities  in  the  practice  of  states,  but,  broadly 
speaking,  the  convention,  made  up  of  popularly  elected 
delegates,  chosen  for  the  special  purpose,  is  the  usual 
modern  agency  for  effecting  changes  in  constitutions. 

Conflicting  Theories  as  to  the  Powers  of  the  Con- 
stitutional Convention. — The  constitutional  conven- 
tion is  so  important  a  body  that  two  conflicting  theories 
have  developed  in  respect  to  its  powers. 

( i )  The  convention  as  an  agent  of  the  state  is  a  body 
whose  powers  are  limited  by  provisions  in  the  constitu- 
tion, and  by  the  statute  providing  for  its  organization  it 


146      THE  STATE  AND  GOVERNMENT 

also  must  submit  its  work  to  the  electorate  for  approval 
or  rejection. 

(2)  The  convention  is  the  embodied  sovereignty  of 
the  state,  acting  for  the  people  and  in  the  name  of  the 
people  in  formulating  a  just  system  of  government. 
Hence  the  convention  is  for  the  time  being  the  people 
itself,  unfettered  by  legislative  injunctions,  and  hence  may, 
if  necessary,  promulgate  the  constitution,  when  made, 
on  its  own  authority,  without  reference  to  the  electorate. 

The  second  theory  was  especially  prominent  in  the 
earlier  history  of  the  Latin-American  states  and  of  the 
commonwealths  of  the  United  States  of  America.  It 
was  necessarily  so  in  order  to  counteract  the  autocracy 
of  legislatures  or  executives  and  is  still  useful  when  leg- 
islatures seek  to  obstruct  political  changes.  It  is,  how- 
ever, gradually  yielding  to  the  other  more  conservative 
theory.  The  convention,  as  such,  is  one  of  the  several 
agencies  of  the  state,  called  into  existence  by  law  and 
subject  to  constitutional  and,  to  some  extent,  even  legis- 
lative regulation.  It  has  the  usual  powers  of  a  lawmak- 
ing  body  over  its  membership  and  procedure,  and  has 
its  only  function  in  the  revision  or  making  of  the  funda- 
mental law.  The  constitution,  however,  when  completed, 
is  never  submitted  to  the  legislature  for  approval,  but 
directly  to  the  electorate  through  the  proper  officers  of 
the  state.18 

"For  a  history  of  the  Convention  see  John  A.  Jameson,  The 
Constitutional  Convention.  Note  also  Charles  Borgeaud,  Adoption 
and  Amendment  of  Constitutions;  this  discusses  foreign  as  well 
as  American  constitutions. 


CHAPTER  X 

THE   CLASSIFICATION   OF   GOVERNMENTS   AND   FUNCTIONS 
OF  GOVERNMENT 

CLASSIFICATION  OF  GOVERNMENTS 

It  used  to  be  common  to  speak  of  the  classification  of 
states,  owing  to  the  former  confusion  of  state  with  gov- 
ernment. But  in  modern  theory  each  state  is  like  every 
other  state,  being  a  sovereign  political  unity,  so  that  not 
states  are  classified  but  their  governments,  which,  of 
course,  may  differ  widely  in  their  forms. 

It  will  be  recalled  that  the  organization  of  the  war 
band  was  probably  the  beginnings  of  political  govern- 
ment. A  war  band  necessarily  is  autocratic  in  type.  In 
a  civilization  characterized  by  frequent  wars  the  war 
chief,  with  his  council  of  minor  chiefs,  all  selected  pre- 
sumably for  their  qualities  of  bravery  and  leadership, 
would  ordinarily  have  little  time  for  protracted  discus- 
sions, or  for  polling  his  followers  for  opinions  as  to  a 
proposed  line  of  action.  Quick  decisions,  proclaimed,  en- 
forced, and  obeyed  would  characterize  that  sort  of  gov- 
ernment. Wa^Qr^ajaigatians,  therefore,  then_and-  now 
tend  to  develop  centralized  forms  of  government  and  to 
concentrate  power  in  the  head,  or  executive,  who  would 
have  authority  to  utilize  the  full  strength  of  the  group  in 
defense  or  offense.  Such  a  system  does  not  require  a 
lawmaking  body  so  much  as  a  council  composed  of  wise 

i47 


148      THE  STATE  AND  GOVERNMENT 

councilors  and  skilled  leaders  in  battle,  supplemented  by 
priestly  officials  able  to  bring  to  the  warriors  the  help 
and  guidance  of  the  gods. 

In  peaceful  times  other  organizations  than  that  for 
war  would  come  to  the  front,  such  as  the  economic,  the 
familial,  or  the  religious,  and  in  these  leisurely  discus- 
sions as  a  basis  for  decisions  would  be  much  more  feas- 
ible. In  such  civilization  leadership  would  tend  to  center 
in  the  heads  of  tribes,  clans,  and  in  powerful  patriarchal 
heads  of  families,  having  control  of  flocks  and  herds; 
or  in  owners  of  landed  estates;  or  in  wealthy  merchants 
when  commercial  activities  were  prominent.  Power, 
therefore,  would  become  diffused  or  decentralized,  dis- 
cussion would  be  permissible,  and  public  opinion  would 
have  greater  weight  in  the  reaching  of  decisions.  In 
other  words  war  organizations  tend  towards  autocratic 
kingship  or  monarchies  and  peaceful  civilization  tends 
towards  democracy,  through  the  intermediate  stage  of 
aristocracy,  or  oligarchy.1 

The  Greek  Classification. — Distinctions  of  this  sort 
were  observed  quite  early  in  studies  of  government  and 
many  attempts  were  made  to  classify  governmental  forms 
into  a  satisfactory  system.  The  Greek  classification, 
usually  assigned  to  Aristotle,2  is  the  best  known  of  these. 
It  divides  governments  into  monarchies,  aristocracies, 
or  democracies,  and  their  perversions,  according  as  the 
location  of  sovereign  power  is  legally  in  the  hands  of  one, 
few,  or  many.  This  classification  was  excellent  in  those 
centuries  and  Aristotle's  discussion  is  still  a  classic  in 
respect  to  ancient  forms  of  government.  For  modern 

1  For  Herbert  Spencer's  discussion  of  this  point  see  his  Principles 
of  Sociology,  vol.  ii,  Part  V,  "Political  Institutions,"  Chaps. 
XVII-XVlil. 

'  Politics,  Book  III,  Sec.  7. 


GOVERNMENTS  AND  FUNCTIONS  149 

times  his  classification  has  become  useless  because  of 
the  many  differentiations  of  government  in  late  centuries. 
It  is  impossible,  for  instance,  to  consider  as  similar  the 
monarchies  of  Japan,  Great  Britain,  and  Spain,  or  the 
republics  of  France,  Germany,  Mexico,  Switzerland,  and 
the  United  States  of  America.  Such  a  classification  does 
not  classify.  Furthermore,  since  the  development  of 
modern  democracy,  the  form  of  government  is  often 
radically  different  from  its  spirit.  Great  Britain  is  in 
form  a  monarchy,  but  is  in  fact  a  representative  denflc- 
racy,  and  Mexico,  which  is  in  form  a  democracy,  is  in 
fact  a  close  oligarchy.  This  divergence  between  theory 
and  fact  and  the  development  of  newer  forms  of  govern- 
ment since  the  time  of  Aristotle,  such  as  systems  of  pop- 
ular representation  and  of  federation,  to  say  nothing  of 
the  Soviet  type  of  Russia,  make  it  difficult  to  devise  a 
satisfactory  classification. 

In  a  classification  based  on  the  spirit  of  government 
the  government  may,  for  example,  be  characterized  as 
despotic  if  rulers  are  guided  by  personal  whim  rather 
than  by  custom  or  law;  or  autocratic  if  governmental 
power  is  actually  concentrated  into  the  hands  of  one 
person;  or  constitutional  if  the  government  is  guided 
in  its  actions  by  well  established  principles  of  law  se- 
curing rights  to  its  citizens.  The  terms  conservative, 
liberal,  radical,  are  also  employed  in  the  usual  meanings 
generally  assigned  to  those  words. 

Again,  a  government  may  be  characterized  as  aristo- 
cratic if  governmental  power  is  in  the  hands  of  a  rela- 
tively small  part  of  the  population  who  nevertheless  gov- 
ern on  the  whole  for  the  general  welfare.  If  a  few  gov- 
ern mainly  in  their  own  interest,  disregarding  the  general 
welfare,  the  term  oligarchy  might  better  be  used.  If  a 


ISO      THE  STATE  AND  GOVERNMENT 

relatively  large  part  of  the  population  control  govern- 
ment and  govern  in  the  interests  of  the  general  public 
that  is  called  a  democracy;  but  if  the  many  are  class- 
conscious  and  oppressive  to  the  minority,  then  the  terms 
mob  rule  or  the  rule  of  the  proletariat  or  ochlocracy  are 
employed. 

Classification  by  the  Extent  of  Popular  Control. — 
A  practical  system  of  classification  can  also  be  obtained 
by  noting  the  degree  of  popular  control  in  the  nation. 
Tfi  may  be  indicated  in  several  ways: 

(1)  By  noting  the  ratio  of  the  electorate  to  the  whole 
population.    A  system  of  unrestricted  manhood  suffrage 
would  approximately  give  one  voter  to  every  four  and 
one-half  persons  in  the  population,  or  about  forty-five 
per  cent  in  the  case  of  adult  suffrage.3    As  the  ratio  rises 
or  the  per  cent  decreases,  the  government  is  presumably 
less  popular.    In  some  of  our  Southern  States,  owing  to 
restrictions  on  suffrage,  and  without  women's  suffrage, 
the  voting  population  is  less  than  ten  per  cent. 

(2)  If  the  government  is  representative,  the  basis  of 
representation  in  the  membership  of  the  lawmaking  body 
may  be  noted.    This  basis  may  be  hereditary  right,  or  a 
right  based  on  office-holding,  or  a  right  based  on  wealth ; 
or  localities  irrespective  of  wealth  or  population  may  be 
represented  equally;  or  equal  masses  of  population  may 
form  the  basis  of  representation. 

(3)  Possibly  the  clearest  idea  of  the  spirit  of  govern- 
ment may  be  had  by  noting  the  body  that  has  the  legal 
right  to  alter  at  will  the  fundamental  law  of  the  land. 
This  body,  the  legal  sovereign,4  may  be  composed  of  the 

3  In  New  Zealand,  with  adult  suffrage  in  a  population  having  a 
low  birth  rate,  the  ratio  of  votes  to  population  varies  from  55  to 
60  per  cent. 

4  See  preceding  chapter. 


GOVERNMENTS  AND  FUNCTIONS  151 

electorate,  as  in  Switzerland,  or  of  a  lawmaking  body, 
as  in  Great  Britain ;  or  may  be  in  the  hands  of  an  heredi- 
tary ruler,  as  in  Japan.  Under  such  a  classification  the 
ancient  Greek  terms  might  again  be  found  useful,  and 
governments  be  classified  as  in  spirit  monarchic,  aristo- 
cratic, or  democratic,  or  the  perversions  of  these,  namely, 
despotic,  oligarchic,  or  ochlocratic,  according  as  the 
power  of  legal  sovereignty  is  in  the  hands  of  one,  few, 
or  many. 

Classification  by  Form. — As  a  classification  Ay 
form,  governments  may  be  classified  as  monarchies  or 
as  republics,  by  noting  whether  the  head  of  the  govern- 
ment be  hereditary  or  elective;  or,  again,  as  centralised 
or  decentralised,  by  noting  whether  the  national  govern- 
ment exercises  a  close  supervision  or  control  over  the 
administrative  systems  of  local  bodies  politic,  as  in 
France ;  or  a  slight,  almost  nominal,  control,  as  in  Switz- 
erland or  in  the  commonwealths  of  the  United  States. 
The  English  system  represents  a  type  intermediate  be- 
tween these  two  extremes,  since  it  regulates  its  local 
bodies  politic  quite  fully  by  general  law  but  by  custom 
allows  them  large  autonomous  powers.  A  republican 
form  of  government,  furthermore,  may  be  called  direct 
or  indirect,  according  as  the  policy  of  the  state  is  deter- 
mined in  the  main  by  the  direct  decisions  of  the  electorate 
itself  or  by  the  decisions  of  its  representatives. 

Federative  Forms. — As  an  additional  classification 
by  form  governments  may  be  considered  as  unitary  or 
federative  (composite)  : 

(i)  In  unitary  forms  the  local  bodies  politic  that 
unitedly  make  up  the  national  body  politic,  obtain  their 
governmental  power  directly  or  indirectly  from  the  na- 
tional government  and  are  consequently  entirely  under 


152      THE  STATE  AND  GOVERNMENT 

its  control.  In  the  last  resort  the  national  organization 
has  the  legal  right  to  determine  the  forms  and  powers  of 
all  local  government.  It  may  not  use  this  power  fully 
and  may  even  delegate  large  autonomous  powers  to  local 
government,  as  in  England,  but  should  the  necessity  arise 
it  has  the  right  to  modify  or  recall  these  at  pleasure. 

(2)  In  federative,  or  as  some  prefer  to  say,  in  com- 
posite forms,  the  several  commonwealths  that  unitedly 
make  up  the  national  body  politic,  have  a  constitutional 
rigjit  to  certain  governmental  powers  and  hence  their 
rignts  cannot  legally  be  modified  by  the  national  govern- 
ment without  the  consent  of  the  commonwealths  them- 
selves. The  numerous  federal  governments  of  modern 
times  should  be  classified  under  this  head. 

The  extent  of  autonomous  powers  held  by  the  com- 
monwealths depends,  of  course,  on  the  constitution. 
They  may  be  so  largely  autonomous  that  the  uniting 
bond  may  resemble  a  treaty  among  sovereign  states 
rather  than  a  constitution.  In  such  cases  the  common- 
wealths really  are  sovereign  states  united  into  a  sort  of 
league,  forming  a  loose  confederation,  to  which  is  dele- 
gated such  powers  as  may  seem  expedient.  If,  on  the 
other  hand,  the  unity  established  is  so  powerful  that  the 
parts  obviously  lose  their  sovereignties,  which  become 
merged  into  the  sovereignty  of  the  Union,  then  we  have 
a  federation  rather  than  a  confederation.  The  right  to 
secede  and  resume  sovereignty  or  the  denial  of  the  right, 
is  the  best  criterion  in  case  of  doubt. 

Akin  to  confederate  forms  of  government  are  unities 
of  sovereign  states  organized  for  special  purposes,  such 
as  treaty  alliances,  like  those  of  the  Central  Powers  in 
the  Great  War,  or  the  Allied  Powers  in  opposition;  or, 
again,  international  unions  such  as  the  League  of  Na- 


GOVERNMENTS  AND  FUNCTIONS  153 

tions,  or  The  Hague  Tribunal  for  the  settlement  of  inter- 
national disputes,  or  the  Postal  Union  for  the  regulation 
ef  postal  service  throughout  the  civilized  world. 

In  future  years,  as  nations  come  in  closer  peaceful 
contact,  governments  will  probably  develop  fundamental 
likenesses  through  conscious  and  unconscious  assimila- 
tion and  imitation,  and  at  that  time  a  more  satisfactory 
classification  will  be  possible.  Meanwhile,  some  formal 
system  of  classification  such  as  that  suggested  above, 
supplemented  by  terms  descriptive  of  the  spirit  of  gov- 
ernment will  be  found  satisfactory  enough  for  ordinary 


purposes.5 


THE  FEDERATION 


The  importance  of  the  modern  federation  as  a  form 
of  governmental  organization  makes  it  worthy  of  spe- 
cial mention.  Confederations  have  been  known  from  the 
earliest  times,  beginning  with  confederated  hordes  and 
tribes  and  passing  on  to  confederations  of  village  com- 
munities, city  states,  and  kingdoms.6  As  a  permanent 
form  of  political  organization,  however,  the  confedera- 
tion is  weak  and  inefficient.  There  is  no  real  unity,  the 
parts  are  practically  sovereign,  and  all  act  together  only 
at  times  of  great  crises.  Their  many  interests  are  so 
diverse  that  a  firm  and  definite  policy  becomes  impos- 
sible. Historically  confederations  end  by  falling  apart 
into  their  constituent  elements,  or  come  under  the  control 
of  some  dominant  member  and  gradually  become  unified 
in  sovereignty. 

°For  chapters  on  classifications,  see,  for  example,  Willoughby, 
The  Nature  of  the  State,  Chap.  XIII,  and  Bluntschli,  Theory  of  the 
State,  Book  VI. 

*For  a  study  of  Greek  confederations,  see  E.  A.  Freeman, 
Federal  Government,  note  also  Hart's  Federal  Government. 


154      THE  STATE  AND  GOVERNMENT 

Yet  in  government  there  is  real  need  for  a  form  that 
will  allow  kindred  communities  having  common  interests 
to  retain  their  individuality  and  at  the  same  time  have  a 
permanent  and  clearly  defined  central  organization,  em- 
powered to  manage  on  its  own  initiative  important  mat- 
ters of  general  interest.  This  device  was  developed  in 
the  United  States  of  America  by  changing  the  old  con- 
federation of  the  Revolution  into  the  present  federation. 
The  distinction  between  these  two  forms  was  not  clearly 
perceived  at  first,  but  the  result  of  the  Civil  War  settled 
it  for  all  time,  just  as  the  Sonderbund  War  of  Switzer- 
land in  1846-7  changed  the  old  Confederation  into  a 
Federation,  even  though  the  term  confederation  is  still 
retained  in  the  constitution. 

Contrasted  with  the  Confederation. — In  a  confed- 
eration the  several  states  composing  the  unity  are  indi- 
vidually sovereign,  and  are  merely  bound  together  by  a 
sort  of  treaty  relationship,  under  the  terms  of  which  a 
joint  organization  is  effected  for  the  performance  of 
specified  functions  delegated  to  it.  As  each  state  in  the 
union  remains  sovereign  it  may  legally  secede  at  pleasure, 
influenced  only  by  the  fear  of  consequences  in  case  it 
violates  obligations  existing  between  itself  and  the  other 
states  of  the  confederation.  In  a  federation,  however, 
this  right  of  withdrawal  is  not  claimed  by  the  common- 
wealths in  the  union,  which  can  only  be  dissolved  by 
mutual  consent.  In  such  a  union  the  sovereignty  of  the 
several  states  merges  into  the  sovereignty  of  the  totality 
and  the  commonwealths  cease  to  be  international  states. 
They  differ,  however,  in  status  from  provinces  or  de- 
partments in  that  their  autonomy  is  fully  safeguarded 
by  constitution.  Furthermore,  they  are  given  by  con- 
stitution a  determining  voice  in  the  federal  government 


GOVERNMENTS  AND  FUNCTIONS  155 

and  in  the  amendment  and  revision  of  the  national  con- 
stitution.    In  a  federation,  therefore,  the  unity  is  per-  j 
manent  and  definite,  not  dissolvable  at  the  whim  of  one  [ 
or  several  of  its  parts,  but  only  by  the  united  will  of  all.  * 
Its  federal  government  exercises  powers  that  cannot  be 
hindered  by  individual  commonwealths,  and  that  must  be 
altered  if  at  all  by  united  action  under  the  constitution. 
On  the  other  hand,  the  commonwealths  of  the  federation 
exercise  sovereign  powers  in  purely  local  matters  with- 
out interference  from  the  federal  government,  and  each 
has  a  voice  in  the  settlement  of  all  matters  that  concern 
the  welfare  of  the  union  as  a  whole. 

Origin  of  Federations. — Not  all  federations,  how- 
ever, arise  as  the  result  of  the  union  of  sovereign  states 
into  a  consolidated  sovereignty.  The  Latin  American 
federations,7  for  example,  were  artificially  formed  by 
subdividing  each  national  area  into  provinces,  or 
"states,"  and  then  by  constitution  bestowing  upon  them 
autonomous  powers  not  controllable  in  theory  by  the 
federal  (national)  government,  after  the  pattern  set  by 
the  United  States  of  America.  The  British  colonial 
federations  8  are,  of  course,  not  sovereign  states  but  are 
federal  in  form,  under  the  sovereignty  of  the  Empire. 
Of  these  the  constitution  of  Australia  is  the  best  illus- 
tration of  a  true  federal  form  and  that  of  the  Union  of 
South  Africa  least  so.  The  British  Empire  which  by 
theory  is  unitary,  since  the  autonomous  powers  of  the 
several  Dominions  depend  on  the  decision  of  the  Parlia- 
ment, may  some  day  conclude  to  reorganize  as  a  federal 
empire,  in  which  case  autonomous  powers  by  constitu- 

7  Mexico,  Venezuela,  Brazil,  and  Argentina. 

8  Canada,    Australia,    South    Africa.    For    comparison    of    these 
along  with  that  of  the  United  States,  see  Arthur  P.   Poley,   The 
Federal  Systems  of  the  United  Stages  and  the  British  Empire. 


156      THE  STATE  AND  GOVERNMENT 

tion  would  be  vested  in  the  several  "states,"  or  common- 
wealths, thereby  making  them  integral  parts  of  the  Em- 
pire. 

The  Utility  of  the  Federation.— The  advantage  of 
a  federation  is  obvious.  By  its  emphasis  on  local 
autonomy  it  safeguards  local  interests  and  allows  each 
commonwealth  to  govern  itself  as  it  pleases,  and  yet  by 
the  establishment  of  a  permanent  central  government  em- 
powered to  manage  without  interference  the  general  in- 
terests of  the  several  commonwealths,  it  allows  the 
development  of  an  immense  empire,  which  can  utilize  the 
strength  and  energy  of  all  the  parts  for  the  common  de- 
fense and  general  welfare.  On  the  other  hand,  the 
powers  granted  or  reserved  to  the  states  may  be  of  so 
general  a  nature,  or  so  numerous,  as  to  hinder  the  fed- 
eral government  in  the  formulation  of  international  poli- 
cies, thereby  weakening  the  state  in  its  international 
relations.  The  Federal  Government  of  the  United  States 
of  America,  for  example,  is  handicapped  in  securing  the 
treaty  rights  of  aliens  by  the  powers  reserved  by  the 
States  in  regulation  of  aliens  resident  within  their  bor- 
ders. In  such  cases,  when  the  necessity  arises,  readjust- 
ments can  be  made  by  constitutional  amendment  or  by 
understandings  arranged  by  the  parties  chiefly  con- 
cerned.9 In  this  century,  when  the  movement  toward 
the  formation  of  world  empires  is  so  marked,  a  well- 
organized  federation  with  its  dual  form  of  government 
has  a  distinct  advantage  over  rival  empires,  notwith- 
standing slight  defects  such  as  those  just  mentioned. 
These  are  unwieldy  because  of  their  bulk,  or  mechanical 
because  of  the  immensity  of  general  and  petty  interests 

9  The  several  agreements  respecting  immigration  between  Japan, 
the  United  States  and  California  are  illustrative  of  this  possibility. 


GOVERNMENTS  AND  FUNCTIONS  157 

controlled  by  a  central  organization.  This  fact  is  be- 
coming increasingly  recognized  in  political  theories,  and 
there  is  in  consequence  a  strong  tendency  toward  the  for- 
mation of  federations.  One  might  surmise  that  within 
a  reasonable  time  federations  will  develop  in  Central 
America  or  among  the  four  southern  states  of  South 
America,  or  among  the  states  of  the  Caucasus,  or  the 
East  Baltic  states,  or  even  among  the  Balkan  states,  hos- 
tile though  they  are  one  to  the  other. 

Dual  Form  of  Federal  Government. — As  a  federa- 
tion necessitates  a  dual  form  of  governmental  organiza- 
tion, the  three  usual  departments  of  government  will  in 
consequence  be  duplicated.  Thus,  in  the  United  States 
of  America  the  Federal  Government  is  made  up  of  a 
President,  a  Congress  and  a  judicial  system  organized 
under  the  Supreme  Court.  But  the  forty-eight  com- 
monwealths unitedly  form  a  coordinate  part  of  govern- 
ment, and  this  is  made  up  of  the  governors  as  executive, 
the  legislatures  as  lawmaking  body,  and  the  courts  as 
supreme  in  local  juridical  matters.  The  national  Con- 
stitution is  not  the  constitution  for  the  Federal  Govern- 
ment only,  but  for  it  and  the  combined  commonwealths 
alike,  since  the  powers  of  both  of  these  coordinate  parts 
are  derived  from  the  Constitution.  The  executive  for 
the  dual  government  of  the  United  States  of  America, 
therefore,  is  made  up  of  the  President  and  the  gover- 
nors;10 the  lawmaking  body  is  composed  of  Congress 
and  the  legislatures,  and  the  judicial  system  includes  the 
courts  of  the  commonwealths  and  of  the  Federal  Gov- 

10  From  the  international  standpoint  the  President  only  is  reccg- 
nized  by  foreign  states,  since  the  commonwealths  as  such  have  no 
international  status  and  the  war  and  treaty  powers  are  in  his  hands, 
subject,  of  course,  to  the  war  powers  of  Congress  and  the  treaty 
powers  of  the  Senate. 


158      THE  STATE  AND  GOVERNMENT 

ernment.  This  may  be  illustrated  by  noting  that  the 
Constitution  is  amended  by  the  joint  action  of  Congress 
and  the  legislatures — the  lawmaking  body  for  the  union 
as  a  whole.  In  popular  discussions  this  dual  form  of 
government  is  often  obscured  or  confused,  and  the  Fed- 
eral Government  spoken  of  as  synonymous  with  the 
United  States  of  America,  but  a  moment's  reflection 
shows  that  this  is  a  loose  use  of  terms  and  without  legal 
justification. 

Other  federations  might  be  used  similarly  as  illustra- 
tions. The  Federal  Government  alone  is  never  the  com- 
plete government  of  its  state.  The  commonwealths  with 
their  special  governments  unitedly  form  a  coordinate 
part  of  the  government,  and  the  two  coordinate  parts, 
federal  and  local,  form  the  complete  government  of  the 
state.11 

CLASSIFICATION  OF  GOVERNMENTAL  FUNCTIONS 

In  Chapters  V  to  VII  attention  was  called  to  the 
many-sided  activities  of  government  as  manifestations 

"Using  the  United   States   as   example,   the   following   diagram 
indicates  the  dual  nature  of  a  Federal  Government: 

GOVERNMENT  OF  THE  UNITED  STATES  OF  AMERICA 


FEDERAL  GOVERNMENT 

1.  Executive 

2.  Legislative 

3.  Judicial 


THE  COMMONWEALTHS 

1.  Executive 

2.  Legislative 

3.  Judicial 


i.  EXECUTIVE  2.  LEGISLATIVE  3.  JUDICIAL 

President  Congress  Supreme  Court 

Governors  State  Legislatures  System 

Heads  of  State  Courts 

Administration 


GOVERNMENTS  AND  FUNCTIONS  159 

of  the  sovereign  powers  of  the  state.  It  would  be  pos- 
sible to  classify  these  activities  as  primary  or  secondary, 
essential  or  non-essential,  putting  under  the  first  heading 
those  that  strictly  appertain  to  the  negative  function  of 
the  protection  of  life  and  property,  and  under  the  second 
heading  those  that  by  contrast  stress  public  welfare  in 
a  positive  or  constructive  fashion.  The  suppression  of 
crime  or  a  defensive  war  would  illustrate  the  first,  and 
the  encouragement  of  recreation,  or  the  fine  arts,  or  edu- 
cation, the  latter.  Such  a  classification,  however,  is  of 
small  importance  and  probably  no  two  persons  could 
agree  as  to  the  proper  assignment  of  many  activities. 

Classification  by  Departmental  Activities. — A  more 
common  form  of  classification  would  be  to  classify  by 
grouping  together  activities  of  a  similar  nature,  such  as 
war,  finance,  commerce,  agriculture,  labor,  education, 
transportation,  colonial  administration,  and  others  read- 
ily ascertained  by  noting  the  kinds  of  governmental  ad- 
ministrative departments,  with  their  subdivisions,  as 
organized  in  any  given  state.  The  numerous  administra- 
tive departments  of  an  empire  like  Great  Britain,  or  the 
scientifically  organized  bureaucracies  of  France  or  of 
Germany,  for  example,  would  furnish  excellent  classifica- 
tions of  concrete  governmental  functioning. 

Five  Classes  of  Governmental  Functions. — For 
theoretical  purposes  the  functions  of  government  may  be 
divided  into  five  classes,  namely,  the  deliberative,  legis- 
lative, executive,  administrative,  and  judicial.  These 
may  be  defined  as  follows : 

I.  The  deliberative  function  is  to  determine  what  is 
the  will  of  the  state. 

II.  The  legislative  function  is  to  formulate  into  law 
the  will  of  the  state. 


160      THE  STATE  AND  GOVERNMENT 

III.  The  executive  function  is  to  see  that  the  laws  of 
the  state  are  carried  out. 

IV.  The  administrative  function  is  to  carry  out  the 
laws  of  the  state. 

V.  The  judicial  function  is  to  interpret  the  law  and 
to  adjudicate  its  remedies  and  penalties. 

Each  of  these  several  functions  will  now  be  briefly 
explained. 

I.  The  Deliberative  Function. — In  every  state  there 
will  always  be  one  or  more  bodies  authorized  to  discuss 
and  settle  on  a  policy,  which  will  represent  the  desire  and 
aim  of  the  state.     This  function  in  older  forms  of  gov- 
ernment is  regularly  exercised  by  the  executive  aided  by 
a  council,  but  in  modern  states  is  shared  between  the 
executive  and  legislative  departments.     At  present  the 
function  of  deliberation  seems  to  be  passing  into  the 
power  of  special   bodies,   nominally  controlled  by  the 
executive  or  legislative  department,  or  by  both,  but  for 
all  practical  purposes  separate  and  distinct.     As  illus- 
trations may  be  noted  the  development  of  a  cabinet,  after 
the  English  fashion;  or  the  deliberations  of  a  bench  of 
judges  as  to  what  is  the  law  of  the  land  or  its  proper 
interpretation;   or  the   development   of   the   permanent 
committees  of  American  lawmaking  bodies,  whose  chair- 
men virtually  form  an  inner  cabinet  for  the  formulation 
of  legislative  policy;  or  the  many  commissions  appointed 
to  study  some  problem  of  importance  and  to  make  recom- 
mendations respecting  a  proper  policy;  or  the  rise  of  the 
constitutional  convention,  dictating  as  it  does  in  the  con- 
stitution a  legislative  policy  binding  on  the  legislature 
and  the  other  departments  of  government. 

II.  The   Legislative   Function. — This   policy,    when 
agreed  on,  is  formulated  into  a  command,  either  defi- 


GOVERNMENTS  AND  FUNCTIONS  161 

nitely  expressed  as  legislative  law  or  executive  decree  or 
order,  or  else  tacitly  expressed  and  made  known  through 
actions  of  governmental  officials.  Judicial  decisions,  for 
example,  are  in  effect  formal  notifications  of  what  is  the 
law  of  the  land. 

III.  The  Executive  Function. — The  executive  func- 
tion involves  the  exercise  of  oversight,  coupled  with  the 
power  to  compel  obedience  to  the  law.     Naturally  this 
function  is  chiefly  confided  to  the  executive  who  may 
recommend  to  a  lawmaking  body,  as  in  the  President's 
message,    action    respecting   matters    needing   attention. 
But  a  lawmaking  body  may  itself  survey  the  national 
situation  and  take  action  without  waiting  for  suggestions 
from  the  executive.    A  judicial  department  also  may  be 
given  oversight  over  the  activities  of  lower  courts,  or  a 
grand  jury  may  survey  the  crime  situation  within  its 
jurisdiction   and   prefer   charges   against   persons   sus- 
pected of  crime. 

IV.  The  Administrative  Function. — In  every   state 
there  must  be  numerous  bodies  of  officials  set  apart  for 
the  performance  of  the  work  and  routine  of  governmen- 
tal business.    These  bodies  collectively  make  up  the  ad- 
ministration  or  civil   service,    which   is   usually   placed 
under  the  direct  authority  of  the  executive  but  may 
happen  to  be  more  immediately  under  the  control  of  the 
lawmaking  body.     By  law  the  control  over  judicial  ad- 
ministration is  regularly  placed  in  the  courts.     There  is 
a  tendency  in  modern  governments  to  differentiate  the 
organization  of  the  administration  from  the  executive 
department,  leaving  to  the  latter  only  a  general  power  of 
supervision  over  administration. 

V.  The  Judicial  Function. — The  judicial  function  is, 
of  course,  chiefly  exercised  by  the  judicial  department, 


162      THE  STATE  AND  GOVERNMENT 

if  one  be  organized,  or  otherwise  by  the  executive  in 
old-fashioned  governments.  But  some  judicial  power  is 
also  usually  exercised  by  the  executive  and  legislative 
departments,  even  though  there  is  an  organized  judicial 
department.  The  executive,  for  example,  may  have  ju- 
dicial functions  respecting  cases  arising  in  the  army  or 
navy  or  over  administrative  courts.12  A  legislative  de- 
partment may  have  judicial  powers  over  its  own  mem- 
bers or  over  governmental  officials  through  the  process 
of  impeachment. 

Under  modern  conditions,  therefore,  even  though  in 
form  a  government  may  be  organized  into  the  usual  three 
departments,  each  apparently  having  but  one  function,  it 
will  regularly  be  found  that  each  of  these  is  performing 
two  or  more  of  these  fivefold  functions. 

Warfare,  the  primary  activity  of  the  state,  may  be 
used  as  a  simple  illustration  of  this  classification  of  gov- 
ernmental functions.  The  head  of  the  army,  acting  for 
the  state  in  war,  first  deliberates  on  a  policy  or  plan  of 
action.  The  decision  when  made  is  announced  in  the 
form  of  a  command.  The  proper  officials  at  once  pro- 
ceed to  carry  out  the  details  of  the  plan  under  the  over- 
sight and  direction  of  the  head.  If  a  subordinate  should 
disobey  orders,  he  is  brought  to  trial,  his  disobedience 
and  the  extent  of  his  offense  are  shown,  and  a  proper 
penalty  imposed.  These  fivefold  functions  are  involved 
in  every  complete  exercise  of  sovereignty,  whether  mani- 
fested in  primitive  or  in  modern  times ;  thus  a  town  meet- 
ing, for  example,  may  deliberate,  formulate,  appoint  a 
committee  from  its  own  membership  to  perform  the 
order,  supervise  the  doing  of  it,  and  punish  by  reprimand 
for  neglect  or  disobedience. 
12  See  page  217. 


GOVERNMENTS  AND  FUNCTIONS  163 

Origin  and  Differentiation  of  These  Functions. — 

One  might  naturally  expect  that  there  would  be  five  dis- 
tinct divisions  of  government,  each  authorized  to  per- 
form one  of  the  five  classes  of  functions ;  but  in  practice 
such  a  formal  separation  would  be  impossible.  If  the 
divisions  of  government  are  traced  historically,  it  will 
be  found  that  in  primitive  or  ancient  governments  all  of 
these  functions  were  exercised  by  a  body  of  elders  or  by 
a  king  aided  by  his  council.  The  same  body  formulated 
a  policy,  in  other  words,  made  it  into  a  decree,  carried 
out  its  injunctions,  supervised  the  performance  of  it, 
and  settled  finally  all  violations.  At  later  stages  of  de- 
velopment these  various  functions  separate  or  differen- 
tiate to  some  extent  and  are  performed  by  different  sets 
of  officials.  The  deliberative  function,  for  instance,  may 
be  exercised  by  a  special  body  of  persons  who  would  per- 
sonally advise  the  king  or  executive  as  his  council.  This 
deliberative  power  may  be  supplemented  by  adding  the 
right  to  formulate  its  decisions  into  law  (legislation)  on 
approval  of  the  king.  Again,  the  decision  of  judicial 
questions  may  be  left  to  picked  men  expert  in  the  law, 
who  sit  on  the  king's  seat  and  make  decisions  in  his 
name.  Or,  lastly,  the  management  of  certain  parts  of 
the  administration  may  be  transferred  to  responsible  and 
capable  men,  who  would  perform  their  functions  with 
but  slight  control  or  interference  on  the  part  of  the 
executive.  The  modern  government  in  its  formal  or- 
ganization usually  consists  of  three  great  divisions :  the 
executive,  the  judicial,  and  the  legislative.  But,  as  al- 
ready mentioned,  in  ancient  or  old-fashioned  states, 
there  is  usually  but  one  department,  the  executive  aided 
by  a  council,  which  performs  all  of  the  functions  of  gov- 
ernment. 


CHAPTER  XI 

THE  DIVISIONS  OF  GOVERNMENT 

THE  SEPARATION  OF  POWERS 

The  development  of  the  three  usual  divisions  of  gov- 
ernment has  furnished  to  students  of  political  philosophy 
two  important  theories,  that  of  the  separation  of  powers 
and  the  check  and  balance  theory.  A  brief  account  of 
these  important  principles  may  prove  useful. 

Montesquieu's  Theory. — When  all  governmental 
power  was  centered  in  the  hands  of  the  executive  there 
was  little  need  to  originate  theories  in  respect  to  the 
separation  of  powers,  but  when  a  differentiation  really 
had  taken  place,  then  some  discussion  became  necessary. 
Aristotle  gave  us  the  first  formal  statement  of  it  when 
he  divided  governmental  functions  into  the  deliberative, 
administrative,  and  judicial,  lawmaking  in  the  modern 
sense  being  almost  unknown  in  his  day.1  His  discussion 
had  no  practical  importance  under  the  autocratic  Mace- 
donian and  Roman  empires  but  was  revived  during  the 
Renaissance  and  played  some  part  in  the  political  dis- 
cussions of  that  period.  In  the  eighteenth  century 
Montesquieu  2  in  his  study  of  the  English  Constitution 
came  to  admire  that  system  of  government,  and  in  his 
Spirit  of  Laws  sought  to  show  the  advantages  of  a 

1  Politics,  Book  IV,  Chap.  XIV  (Bohn  edition). 

2  See  pages  122-123. 

164] 


DIVISIONS  OF  GOVERNMENT  165 

separation  of  the  executive,  legislative,  and  judicial  pow- 
ers. He  argued  that  in  order  to  secure  justice  in  the 
state,  each  set  of  powers  should  be  placed  in  the  control 
of  a  different  set  of  officials,  in  order  that  the  same  offi- 
cials should  not  have  the  power  to  make  and  enforce  the 
law,  and  to  punish  infractions  of  it.  Rousseau  in  his 
Social  Contract  added  the  important  principle  that  power 
over  the  fundamental  law  should  always  rest  with  the 
people,  in  order  that  the  government  as  a  whole  might 
not  become  tyrannical.3 

Montesquieu's  theory  of  separation  has  become  a 
democratic  principle,  though  its  application  varies  con- 
siderably in  different  states.  It  is  carried  out  most  log- 
ically in  the  American  national  system,  in  which  the, 
three  departments  of  government  are  by  law  coordinate, 
in  importance,  each  controls  its  own  set  of  functions  and 
each  is  as  independent  of  the  others  as  is  feasible  with 
the  unity  of  government.  In  other  states  there  is  often 
a  formal  but  not  a  real  separation,  in  that  some  one  de- 
partment tends  to  dominate  the  others.4  In  France  the 
administration  is  largely  made  independent  of  the  legis- 
lative and  the  judicial  departments  through  the  organi- 
zation of  a  special  code  of  administrative  law  and 
procedure.  In  the  new  constitution  of  Uruguay,  adopted 
in  1917  and  in  effect  March  i,  1919,  the  administration 
of  internal  affairs  has  been  largely  taken  from  the  Presi- 
dent and  intrusted  to  a  National  Council  of  Adminis- 
tration of  nine  members,  elected  for  a  six-year  term. 

1  The  electorate  in  the  England  of  Montesquieu's  time  was  so 
insignificant  that  he  paid  no  attention  to  it.  Rousseau  in  contrast 
believed  that  liberty  was  impossible  unless  the  people  had  in  their 
hands  the  ballot  and  controlled  the  government. 

4  Note,  for  example,  the  dominance  of  the  lawmaking  body  in 
Great  Britain  and  France. 


166      THE  STATE  AND  GOVERNMENT 

This  is  a  decided  innovation  and  probably  a  move  in  the 
right  direction.  The  commonwealths  of  the  United 
States  of  America  in  their  constitutions  formally  sepa- 
rate the  three  divisions  but  by  an  illogical  assignment  of 
powers  often  fail  to  separate  them  in  fact.5  In  New 
York,  for  example,  the  executive  has  a  large  control  over 
legislation,  while  in  Rhode  Island  the  assembly  controls 
almost  all  of  the  executive  functions  and  in  addition 
elects  the  judiciary. 

Powers  of  the  Usual  Three  Departments. — When 
governmental  powers  are  logically  divided,  the  usual 
powers  held  by  the  three  departments,  respectively,  are 
as  follows: 

I.  The  Executive  Department. — The   executive   de- 
partment has  (i)  the  right  to  represent  the  dignity  and 
personality  of  the  state;  (2)  war  powers,  including  man- 
agement of  the  army  and  navy,  and  the  power  of  declar- 
ing war  and  peace;  (3)  general  oversight  of  the  entire 
organization  of  the  government,  involving  the  right  to 
take  the  initiative  in  action  in  case  of  sudden  emergency ; 
(4)  headship  over  the  administration;  (5)  the  power  of 
appointment  to  all  important  offices  under  the  state. 

II.  The  Lawniaking,  Department. — The   lawmaking 
department  has  ( i )  the  power  to  decide  what  is  and  what 
should  be  the  law  of  the  land;  (2)  the  power  to  deter- 
mine the  amount  and  kind  of  taxes  to  be  levied  and  to 
control  the  levying  and  expenditure  of  these.     Legisla- 

6  See,  as  an  example  of  formal  separation,  the  Massachusetts 
Constitution,  Part  I,  Article  XXX. 

"In  the  government  of  this  Commonwealth  the  legislative  de- 
partment shall  never  exercise  the  executive  and  judicial  powers, 
or  either  of  them ;  the  executive  shall  never  exercise  the  legislative 
and  judicial  powers,  or  either  of  them;  the  judicial  shall  never 
exercise  the  legislative  and  executive  powers,  or  either  of^  them; 
to  the  end  it  may  be  a  government  of  laws  and  not  of  men." 


DIVISIONS  OF  GOVERNMENT  167 

tive  bodies  often  share  with  the  executive  the  power  to 
determine  the  policy  of  the  state,  both  domestic  and  inter- 
national, and  of  general  oversight  over  public  welfare. 

III.  The  Judicial  Department,— The  judicial  depart- 
ment has  ( i )  the  power  to  interpret  the  law  so  as  to 
apply  its  remedies  and  penalties  in  all  cases  submitted  to 
the  courts  for  decision;  (2)  in  the  United  States  of 
America  the  national  Supreme  Court  has  the  power  to 
decide  finally  the  meaning  and  authority  of  the  law  in  all 
judicial  cases  that  arise,  even  though  such  decisions  prac: 
tically  involve  the  nullifying  of  laws  or  rules  made  by 
the  legislative  and  executive  departments.  A  similar 
power  is  exercised  by  the  State  supreme  courts  each 
within  its  own  jurisdiction. 

The  Check  and  Balance  System. — Manifestly  it 
would  be  absurd  to  separate  the  three  usual  divisions  of 
government  so  far  as  to  make  each  entirely  independent 
of  the  others.  In  order  to  avoid  such  a  chaos  gf_author- 
ity  and  to  unify  governmental  powers,  a  system  of  checks 
and  balances  has  developed  in  all  modern  governments, 
though  worked  out  most  carefully  in  the  United  States 
of  America.  The  theory  of  checks  and  balances  6  goes 
back  to  ancient  times,  since  it  was  fully  discussed  by 
Aristotle,  Polybius,  and  Cicero  some  two  thousand  years 
ago.  The  fundamental  idea  is  that  in  a  state  there  are 
always  diverse  interests  seeking  expression  in  and 
through  the  government,  and  that  no  one  of  these  should 
become  so  powerful  as  to  have  the  others  completely  at. 
its  mercy.  This  thought  is  applied  later  in  connection 
with  the  theory  of  the  separation  of  powers  so  as  to  de- 
velop a  system  whereby  each  separate  division  of  gov- 

6  See  Montesquieu,  Spirit  of  Laws,  Book  XI,  Chap.  IV;  Black- 
stone's  Commentaries,  Book  I,  Cljap.  II. 


i68      THE  STATE  AND  GOVERNMENT 

ernment  might  be  controlled  by,  and  in  return  control, 
the  other  divisions.  In  this  way  each  division  checks  the 
others  if  they  become  tyrannical,  and  is  itself  checked 
by  similar  powers  held  by  the  other  divisions.  Thus  a 
bill  of  rights  inserted  in  the  fundamental  law  is  a  check 
on  possible  governmental  tyranny  against  citizens;  the 
power  of  removal  for  cause  is  a  check  on  administrative 
incompetency,  and  the  power  of  pardon  in  the  hands  of 
the  executive  is  a  check  on  excessively  severe  judicial 
penalties.  In  the  same  way  the  veto  power  checks  a 
legislature,  and  its  power  of  impeachment  may  check 
abuses  of  power  on  the  part  of  the  executive  and  the 
judiciary.  In  a  federal  system  the  constitution  in  gen- 
eral has  an  elaborate  series  of  checks,  so  as  to  safeguard 
the  commonwealths  against  the  federal  government,  and 
the  government  against  the  commonwealths.  Thus,  an 
appeal  to  the  national  supreme  court  may  be  made  by 
either  federal  government  or  state  on  a  question  of  final 
interpretation  of  the  constitution. 

It  should  not  be  assumed,  however,  that  the  principle 
of  the  separation  of  powers  is  one  in  general  use.  Out- 
side of  the  United  States  it  meets  with  little  favor,  and 
in  the  United  States  is  found  chiefly  in  the  Federal  sys- 
tem, having  made  little  headway  in  State  or  municipal 
government.  It  is  probably  retained  in  the  Federal  sys- 
tem because  of  the  extreme  difficulty  of  effecting  a  radi- 
cal change  in  the  Constitution,  such  as  that  would  be. 
The  separation  of  powers  in  English  government  noted 
by  Montesquieu  was  temporary  only,  being  followed  by 
the  cabinet  system  of  government  in  which  the  executive 
and  legislative  bodies  are  unified  in  policy  through  the 
Cabinet — a  body  exercising  at  once  deliberative,  legis- 
lative, executive,  and  administrative  functions.  The 


DIVISIONS  OF  GOVERNMENT  169 

cabinet  system  or  some  modification  of  it  prevails  among 
the  European  states,  as  against  the  separation  of  powers 
and  check  and  balance  system,  which  is  thought  to  stand 
in  the  way  of  unified  governmental  action.  The  Ameri- 
can deadlock  between  the  President  and  the  Senate 
(1920)  over  the  ratification  of  the  German  Peace  Treaty 
illustrates  clearly  the  evil  complained  of. 

THE  DIFFERENTIATION  OF  POWERS 

There  is  another  aspect  of  governmental  power,  dis- 
tinct from  the  theory  of  Montesquieu,  which  might  bet- 
ter be  referred  to  as  the  differentiation  of  powers. 
Government  has  become  much  more  complex  since  the 
eighteenth  century  announced  a  threefold  separation  of 
powers,  and  complexity  always  involves  added  differen- 
tiation. 

I.  Differentiation   of   the   Administrative   from   the 
Executive. — Attention  has  already  been  called  to  the  fact 
that  administration  is  rapidly  differentiating  from  the 
executive  function.     Modern  governmental  administra- 
tive systems  with  their  administrative  law,  administra- 
tive courts,  and  fixed  tenure  of  office  are  virtually  units 
in  themselves  and  connected  in  a  shadowy  sort  of  way 
only  with  the  executive.     It  is  a  mere  matter  of  time, 
therefore,  before  such  states  as  France,   for  example, 
will  speak  of  four  departments  of  government,  and  name 
as  a  fourth  the  administration.     The  new  constitution 
of  Uruguay  already  referred  to  is  an  illustration  of  this 
tendency. 

II.  Differentiation  of  the  Lawmaking  Body. — Again, 
up  to  life  nineteenth  century,  very  few  laws  were  made 
by  lawmaking  bodies  and  the  few  which  were  made  were 


170      THE  STATE  AND  GOVERNMENT 

fundamental  in  importance.  For  the  last  hundred  years, 
however,  lawmaking  bodies,  especially  in  the  United 
States,  have  assiduously  devoted  themselves  to  the  an- 
nual or  biennial  multiplication  of  laws,  mostly  in  respect 
to  matters  of  small  importance.  Unwise  and  petty  legis- 
lation is  so  characteristic  of  modern  American  legislators 
that  they  seldom  enjoy  public  confidence.  In  conse- 
quence, a  special  lawmaking  body  has  developed,  the 
constitutional  convention,  authorized  in  conjunction  with 
the  electorate  to  make  the  fundamental  law  of  the  writ- 
ten constitution.  This  has  become  a  most  efficient  check 
on  legislative  incompetency,  as  the  personnel  of  con- 
ventions is  regularly  high  and  the  law  they  formulate 
serves  as  a  check  and  regulation  on  statutory  legislation. 
In  the  United  States,  therefore,  more  especially,  but  in 
other  states  as  well,  lawmaking  has  differentiated  into 
two  parts :  the  fundamental  law  of  the  written  constitu- 
tion, and  statutes  or  acts  made  by  the  usual  lawmaking 
bodies.  For  this  reason  it  would  be  entirely  proper  to 
speak  of  another  department  of  government,  the  legal 
sovereign,  and  to  define  the  term  as  "that  person  or  body 
of  persons  having  the  legal  right  to  make,  revise,  or 
amend  the  constitution  of  the  state."7 

III.  Differentiation  of  the  Judiciary. — But  this  is  not 
all ;  in  SeTTmfelffl^  Supreme  Courts 

have  final  decision  as  to  the  meaning  of  national  or  local 
constitutions,  so  that  all  laws  conflicting  with  the  de- 
clared meaning  of  the  Constitution  are  virtually  pro- 
nounced by  the  courts  to  be  null  and  void.  As  court 
dockets  grow  in  length,  there  is  a  developing  tendency  to 
delegate  to  inferior  courts  of  appeal  for  final  settlement 
all  cases  that  do  not  involve  an  authoritative  interpreta- 

TSee  Chapter  IX. 


DIVISIONS  OF  GOVERNMENT  171 

tion  of  the  Constitution.  The  time  is  not  far  distant, 
therefore,  when  in  the  United  States  that  will  be  practi- 
cally the  sole  function  of  its  Supreme  Courts,  and  this 
change  would  make  them  in  essence  a  department  of  gov- 
ernment separate  and  distinct  from  the  ordinary  judicial 
system. 

IV.     Differentiation    of    the    Electorate. — There    is, 

•tftiHMiMiMMMMihMMtfWWMMNMlAM^^  . 

however,  a  most  important  differentiation  of  power  in 
development  that  regularly  escapes  the  notice  of  political 
theorists.  One  of  the  most  puzzling  problems  in  all  po- 
litical science  is  to  ascertain  what  writers  mean  who 
speak  of  "the  ultimate  sovereignty  of  the  people,"  "the 
location  of  sovereignty  in  the  people"  or  "popular  sov- 
ereignty." As  a  rule,  such  writers  become  confused  by 
trying  to  harmonize  an  ethical  principle  borrowed  from 
natural  rights  and  the  social  contract  theory,  to  the  effect 
that  a  people  should  control  sovereign  powers,  with  legal 
conditions  entirely  at  variance  with  the  principle.  Out- 
side of  Switzerland  it  would  be  hard  to  show  any  state 
of  which  it  can  be  said  that  the  people  legally  possess  the 
full  powers  of  sovereignty. 

In  place,  therefore,  of  ethical  discussions  as  to 
whether  the  people  should  or  should  not  rule,  attention 
might  better  be  fixed  on  a  neglected  department  of  gov- 
ernment, namely,  the  electorate.  The  powers  of  the  elec- 
torate are  as  truly  governmental  as  are  the  powers  of  the 
usual  three  departments.  Through  the  suffrage  it  exer- 
cises the  executive  power  of  appointment  and  may 
compel  resignations  through  the  recall,  through  the  use 
of  the  initiative  andTHe  referendum  it  may  exercise  large 
and  important  lawmaking  powers,  and  by  its  right  of 
jury  service  it  aids  the  judiciary  in  the  settlement  of  civil 
and  criminal  cases. 


172      THE  STATE  AND  GOVERNMENT 

If  the  electorate  should  include  all  adult  citizens,  male 
and  female,  and  by  election  should  appoint  all  important 
executive  and  administrative  heads,  all  lawmakers,  and 
all  judges,  and  should  have  over  these  the  right  of  in- 
struction and  of  recall;  and  if  it  had,  as  in  Switzerland 
and  in  Oregon,  California,  and  other  commonwealths  of 
the  United  States,  the  right  of  initiative  and  referendum 
even  in  respect  to  the  constitution,  then  one  might  prop- 
erly say  that  the  electorate  voicing  the  will  of  the  people, 
had  in  its  hands  the  sovereign  powers  of  the  state.  The 
tendency  throughout  the  modern  world  is  unquestionably 
in  this  direction,  even  though  as  a  matter  of  fact,  elec- 
torates, as  a  rule,  have  comparatively  few  powers  and 
there  are  many  restrictions  on  adult  suffrage.  In  no  legal 
sense,  therefore,  can  it  be  asserted  that  the  people  as  a 
rule  are  legally  sovereign.8  If,  however,  it  seems  desir- 
able to  favor  such  a  form  of  government,  the  member- 
ship of  the  electorate  must  be  enlarged  by  the  extension 
of  suffrage  so  as  to  include  the  fifty  to  sixty  per  cent  of 
the  population  where  adult  suffrage  prevails,  and  the 
powers  of  the  electorate  must  be  added  to  by  increasing 
its  control  over  law  and  administration.  If,  however, 
aristocracy  is  the  form  of  government  favored  rather 
than  democracy,  the  membership  of  the  electorate  should 
be  reduced  by  adequate  restrictions  and  its  governmental 
powers  minimized. 

Broader  Definition  of  Government. — If  one  were  to 
define  the  term  government  broadly,  in  harmony  with 
this  explanation  of  governmental  organization  and  dif- 
ferentiation, it  might  be  said  to  be  the  sum  total  of  those 

8  In  political  ethics,  of  course,  it  may  be  argued  that  the  people 
have  a  "right  of  revolution,"  but  legally  there  is  no  such  right, 
and  revolutionists  are  technically  rebels. 


DIVISIONS  OF  GOVERNMENT  173 

organizations  that  exercise  or  may  exercise  the  sovereign 
powers  of  the  state. 

Since  all  the  sovereign  powers  of  the  state  may  be  ex- 
ercised through  the  following  departments,  singly  or  col- 
lectively, the  government  may  be  thus  tabulated  :9 

1.  The  legal  sovereign,  maker  of  fundamental  law; 

2.  The  lawmaking  department,  making  statutes; 

3.  The  executive,  from  which  is  differentiating  the 

4.  Administrative;, 

5.  The  judicial  system,  from  which  is  separating  (in 
the  United  States) 

6.  A  special  court  for  the  authoritative  interpretation 
of  the  written  constitution. 

7.  The  electorate,  which  is  steadily  increasing  its  pow- 
ers at  the  expense  of  the  three  historic  departments  of 
government. 

Doubtless  for  many  years  to  come  text-books  and 
theorists  will  continue  to  discuss  the  threefold  division 
of  governmental  organization,  but  in  this  age  of  govern- 
mental differentiation  it  is  well-nigh  impossible  to  get  a 
clear  understanding  of  government  unless  one  considers 
;the  electorate  as  a  fourth  department.  Furthermore, 
much  more  exactness  in  theorizing  would  be  attained  by 
separating,  mentally  at  least,  the  legal  sovereign  from  the 
other  departments  of  government.  The  differentiation 
of  administration  from  the  executive  is  almost  an  ac- 


*  Government-!  Legal  Sovereign  - 


Lawmaking 

Executive 

Administrative 

Judicial,  having  (in 
the  United  States) 
two  clearly  defined 

.    functions. 


Electorate 


174      THE  STATE  AND  GOVERNMENT 

complished  fact  on  the  continent  of  Europe.  The  re- 
maining specialization  is  peculiar  to  the  United  States 
of  America  and  deserves  special  attention  because  of  its 
political  importance,  for  if  the  Supreme  Court  of  the 
Federal  department  ultimately  devotes  itself  only  to  final 
interpretations  of  the  Constitution,  the  political  party 
affiliations  of  the  members  of  its  bench  will  become  a 
matter  of  increasing  concern. 

Summary  of  Governmental  Differentiation. — This 
differentiation  of  the  divisions  of  government  may  be 
summarized  as  follows : 

In  modern  states  the  government  is  usually  divided 
into  three  departments;  the  executive,  the  judicial,  and 
the  legislative.  Historically,  however,  the  last  two  are 
developments  from  the  first,  which  is  fundamental.  In 
governmental  systems  these  divisions  are  often  largely 
formal  and  not  based  on  an  exact  logical  separation  of 
the  three  great  classes  of  governmental  activity.  The 
executive  department,  for  instance,  may  exercise  judi- 
cial powers  through  a  series  of  administrative  and  naval 
and  military  courts,  or  it  may  formulate  law  under  the 
name  of  decrees  or  ordinances.  On  the  other  hand,  a 
lawmaking  body,  besides  judicial  powers  over  its  own 
membership,  or  over  certain  classes  of  governmental  of- 
ficials,10 may  exercise  large  executive  powers  by  dic- 
tating the  personnel  of  executive  or  administrative  or- 
ganization.11 A  judicial  department,  also,  by  its  power 
to  interpret  the  law  of  the  land,  may  in  effect  alter  such 
law  by  legal  fiction  or  by  strained  interpretations  of  the 
law  itself.  These  three  closely  related  divisions  of  gov- 

10  By  impeachment,  for  instance. 

"By  dictating  the  personnel  of  the  cabinet,  or  legislating  in  re- 
spect to  appointments  to  the  civil  service.  France  and  Great  Britain 
are  typical  illustrations. 


DIVISIONS  OF  GOVERNMENT  175 

ernment  unitedly  exercise  such  sovereign  powers  of  the 
state  as  may  be  intrusted  to  them  by  constitution. 

The  Executive  Department. — Historically  the  execu- 
tive department  arises  from  the  body  of  elders  and  chiefs 
found  in  early  primitive  associations,  such  as  the  horde. 
These  natural  leaders  guided  the  affairs  of  their  savage 
communities,  virtually  performing  the  usual  functions  of 
modern  governments.  They  knew  the  customs  and  an- 
nounced them  authoritatively,  they  led  in  war  or  chose 
a  leader  for  that  purpose,  they  administered  routine  busi- 
ness and  adjudicated  disputes.  As  the  patriarchal  stage 
developed  and  the  horde  passed  into  the  tribe,  this  body 
of  elders  came  to  consist  of  the  heads  of  families,  who 
represented  the  wealth  and  importance  of  the  several 
domestic  groups  in  matters  of  general  interest.  The 
electorate  in  such  systems  may  be  considered  as  the 
tribesmen,  clansmen,  or  villagers  in  assembly  assenting 
to  or  dissenting  from  decisions  made  by  the  elders  or 
heads.  As  bonds  of  closer  unity  developed,  the  head  of 
the  leading  family  began  to  assume  greater  prominence; 
and,  as  the  ancestral  head  of  the  entire  community,  he 
gradually  assumed  the  responsibility  of  leadership  and 
oversight,  aided  by  a  council  made  up  of  the  heads  of 
prominent  families.  As  the  tribal  community  grew  in 
wealth  and  importance  with  the  growth  of  agriculture 
and  commerce  or  by  means  of  successful  war,  this  head 
became  a  king,  ruling  by  the  will  of  the  gods  and  through 
hereditary  right.  At  a  later  stage  he  was  himself  con- 
sidered a  god,  descended  from  gods,  and  even  in  life 
might  be  worshiped  as  a  divine  person.  Such  a  system 
of  government  would  naturally  develop  into  despotism 
on  the  part  of  the  king  and  abject  submissiveness  on  the 
part  of  the  people. 


176      THE  STATE  AND  GOVERNMENT 

Limitations  on  Royal  Power. — Evidently  in  a  state  of 
any  wealth  and  importance,  the  king  even  though  power- 
ful would  have  to  depend  more  and  more  on  his  council 
for  advice  and  for  the  performance  of  governmental 
functions.  Little  by  little,  to  these  important  officers 
were,  as  a  matter  of  fact,  delegated  large  powers  in  war, 
in  judicial  decisions,  in  religion,  and  in  general  adminis- 
tration. In  great  patriarchal  states,  therefore,  the  coun- 
cil became  a  deliberative  body,  which  in  the  king's  name 
formulated  policy,  transacted  business,  and  rendered 
decisions  in  disputed  cases.  Under  such  a  system  the 
theory  of  despotism  might  survive,  but  the  thing  itself 
would  be  hedged  about  with  restrictions  placed  on  it  by 
the  influential  classes  in  charge  of  the  government.  Such 
a  monarchy  is  aristocratic  or  oligarchic,  the  real  power 
being  exerted  by  privileged  classes  of  clergy  and 
nobility. 

If  the  middle  and  commercial  classes  should  develop 
in  importance  through  increased  wealth  and  intelligence, 
then  these  also  would  have  a  growing  share  in  govern- 
ment, since  as  an  electorate  they  would  begin  to  claim 
a  voice  in  decisions  and  a  share  of  the  offices.  The  older 
patrician  classes  would  reserve  for  their  members  the 
most  important  offices  and  the  most  intimate  connection 
with  the  king,  but  would  share  with  the  influential  mem- 
bers of  the  newer  class  minor  offices  and  would  consult 
them  in  matters  that  directly  affected  their  interests.  In 
England  at  least,  under  the  Stuarts,  the  commercial 
classes  fought  for  an  independent  judiciary,  free  from 
royal  influence,  so  that  justice  might  be  obtained  without 
fear  or  favor.  It  was  during  this  same  period  also  that 
the  English  made  the  distinction  between  a  law 
paramount — a  constitution — and  mere  parliamentary 


DIVISIONS  OF  GOVERNMENT  177 

statutes.    In  sach  developments  as  these  we  have  all  the 
essentials  for  modern  governmental  organization: 

1.  There  is  a  king  at  the  head  of  the  government, 
whose   autocratic   powers   gradually   pass   to   a   council 
made  up  from  patrician  classes.     This  tendency  may  go 
so  far  that  the  king's  power  becomes  merely  nominal, 
in  which  case  he  may  be  removed  altogether  and  an 
elected  head  or  heads  take  his  place,  as  in  the  oligarchical 
governments  of  ancient  Greece  and  Rome. 

2.  Increase  in  the  business  assigned  to  the  council  com- 
pels a  differentiation  of  work.     A  specialized  form  of 
work,  involving  much  routine  and  permanent  activity,  is 
transferred  to  the  charge  of  one  or  several  members  of 
the  council,    and   becomes  ultimately   a  department   of 
administration.    In  this  way  are  separated  one  after  the 
other  such  functions  as  religion,  justice,  war,  finance, 
and  taxation.    As  the  business  and  activities  of  the  state 
increase,    these    several   departments   of   administration 
grow  in  number  and  importance.     Each  differentiates 
into  bureaus  or  divisions  and  the  whole  system  becomes 
a  hierarchy  of  carefully  graded  offices,  a  bureaucracy, 
nominally  under  the  supervision  of  the  head  of  the  state. 

3.  At  the  same  time  the  council  as  a  whole,  or  the 
most  influential  members  of  it,  remains  as  a  deliberative 
body  having  oversight  over  public  interests  as  a  whole. 
This  is  the  ancestor  of  the  modern  cabinet,  which  in 
some  form  or  other  is  found  in  every  government.     In 
this  council  or  cabinet  the  principal  departments  are  regu- 
larly represented  by  their  most  important  officers,  who 
thus  perform  a  double  function,   serving  as  heads  of 
administration  and  as  advisers  to  the  king  or  president. 
In  France  there  is  a  sharp  distinction  between  the  Cabinet 
of  Ministers  in  their  advisory  capacity,  and  the  same 


178      THE  STATE  AND  GOVERNMENT 

persons  as  a  Council  of  Ministers  serving  in  an  adminis- 
trative capacity.12  Practically  all  continental  European 
states  have  their  administrations  separately  organized 
and  regulated  by  a  special  code  of  administrative  law 
and  a  special  system  of  courts. 

4.  Meantime  the  department  of  justice  so  rapidly  in- 
creases its  duties,  owing  to  the  broadening  out  of  the 
judicial  function,  that  it  ceases  to  be  thought  of  as  a 
branch  of  administration  controlled  by  the  executive  and 
becomes  by  theory  a  separate  division  of  government. 

5.  In   times   of    rapid   development   there   are   many 
changes  which  involve  increased  taxation  and  modifica- 
tions of  existing  law.     The  council  by  experience  learns 
the  wisdom  of  consulting  more  and  more  the  most  influ- 
ential persons  or  interests  affected  by  such  changes.   Such 
persons,  or  their  representatives,  thus  have  in  connection 
with  the  king  and  council  a  voice  in  the  determination  of 
new  policies  or  modifications  of  old  ones.    As  the  system 
develops,  it  may  evolve  into  a  lawmaking  body,  as  in 
England,  the  council  forming  an  upper  house  or  cham- 
ber ;  and  representatives  of  the  other  interests  in  the  state 
forming  a  lower  house.     If  progress  in  wealth  and  im- 
portance continues,  this  lower  house  may  develop  powers 
so  large  as  virtually  to  deprive  the  upper  house  of  its 
supremacy.13     In  this  case  the  government  passes  into 
the  hands  of  the  middle  classes  and  a  conservative  de- 
mocracy is  the  result,  even  though  in  form  the  state  still 
remains  a  monarchy. 

This  line  of  development  involves  in  due  time  the 
differentiation  of  the  electorate  from  their  representa- 

"See  Woodrow  Wilson,  The  State,  p.  226  (1898  edit.). 
"This  movement  at  the  present  time  is  best  illustrated  by  the 
growing  power  of  the  lower  house  in  Japan. 


DIVISIONS  OF  GOVERNMENT  179 

lives  authorized  to  determine  the  law  of  the  land,  and 
these  representatives  in  turn  may  differentiate  into  two 
bodies:  one  authorized  to  declare  the  fundamental  law 
of  the  land  (the  legal  sovereign),  and  the  other  to  for- 
mulate detailed  legislation  under  the  name  of  acts  or 
statutes. 

This  outline  of  governmental  development  illustrates 
in  a  general  way  the  usual  changes  resulting  from  a 
progressive  development  from  savage  communal  life 
down  to  the  modern  era  with  its  democracy  and  growing 
complexity  of  political  phenomena.  Naturally  there  are 
many  variations  in  detail  in  different  parts  of  the  world, 
but  in  a  fundamental  way  the  development  outlined  will 
hold  true  for  all  states  in  the  line  of  progress. 

Russia  as  Illustration. — This  development  may  be 
illustrated  more  concretely  by  noting  the  rapid  develop- 
ment of  political  changes  in  Russia  in  late  years.  At  the 
beginning  of  the  century  the  Government  of  Russia  was 
a  pure  autocracy  without  constitutional  guaranties.  The 
Tsar,  in  the  year  1906,  promulgated  for  Russia  its 
Fundamental  Laws,14  and  the  essential  points  of  these 
may  be  stated  as  an  illustration  of  a  movement  from  a 
pure  autocracy  to  a  constitutional  monarchy.  In  the 
constitution  the  Tsar  is  declared  to  be  the  supreme  auto- 
crat, his  authority  is  ordered  by  God  Himself,  and  his 
person  is  divine  and  inviolable.  His  enormously  large 
executive  powers,  including  the  right  to  determine  for- 
eign policy,  to  declare  war,  or  to  conclude  peace,  were 
to  be  exercised  in  connection  with  a  Council  of  Ministers 
whom  he  appointed  or  removed  at  pleasure,  and  one  of 
whom  had  to  countersign  his  orders  or  decrees.  The 

14  See,  in  the  Bibliography,  Do4d,  Modern  Constitutions,  vol.  ii, 
pp.  182-195. 


i8o      THE  STATE  AND  GOVERNMENT 

chairman  or  president  of  this  Council  was  directly  re- 
sponsible to  him  and  represented  him  in  the  national 
Parliament.  He  reserved  for  himself  the  initiative  in 
legislation  in  respect  to  fundamental  laws,  but  shared 
with  a  bicameral  body  meeting  annually  other  legislative 
powers,  reserving,  however,  the  right  of  veto.  Further- 
more, he  appointed  one-half  the  membership  of  the  upper 
house,  the  Council  of  the  Empire,  and  provided  for  the 
election  of  the  other  half  for  a  nine-year  term  by  rep- 
resentatives of  the  great  interests  of  the  state,  such  as 
the  provincial  assemblies,  the  nobility,  the  Church,  the 
universities,  and  bodies  representative  of  industrial 
interests.  The  membership  of  the  lower  house,  the 
Duma,  was  to  be  elected  for  a  five-year  period  by  a 
four-class  system,  made  up  of  landed  proprietors,  mu- 
nicipal voters,  peasants,  and  laborers,  and  so  arranged 
as  to  give  a  preponderance  of  votes  to  the  wealthier 
classes.  In  addition  to  this  newer  organization  were 
survivals  of  the  old  order  in  (i)  the  ruling  Senate  and 
(2)  the  Holy  Synod;  the  first  having  judicial  functions 
chiefly,  and  the  authority  to  promulgate  laws  when 
properly  passed  by  the  Parliament  and  approved  by  the 
Tsar,  and  the  second  having  jurisdiction  over  the  re- 
ligious affairs  of  the  Empire. 

In  that  document,  therefore,  may  be  observed  a  grant 
of  powers  emanating  from  a  divinely  appointed  auto- 
crat and  providing  for  the  separation  of  divisions  of 
governmental  powers  exercised  respectively  by  a  Cabinet, 
a  national  Church,  a  judicial  organization,  a  lawmaking 
body,  and  an  electorate,  the  last  two  representing  addi- 
tions to  the  older  governmental  organization.  Legal 
sovereignty  was  to  remain  vested  in  the  Tsar,  who  also 


DIVISIONS  OF  GOVERNMENT  181 

reserved  final  authority  in  administration,  lawmaking, 
and  judicial  decisions. 

This  slightly  modified  autocratic  system,  however, 
proved  unable  to  stand  the  strain  of  a  great  war.  In- 
efficiency and  corruption  were  so  manifest  that  under 
the  sting  of  defeat  the  nation  rose  in  revolution,  disen- 
throned  the  Tsar,  and  established  first  a  rather  con- 
servative democracy,  which  under  Kerensky  became 
somewhat  radical  along  socialistic  lines,  and  this  in  turn 
was  overthrown  and  a  soviet  form  of  government  estab- 
lished. 

The  soviet  form  of  government 15  is  based  somewhat 
on  occupational  interests,  since  the  Soviets  are  of  three 
types — peasant,  artisan,  and  soldier — each  of  these 
differentiating  into  communal  groups  which  send  dele- 
gates to  provincial  and  national  assemblies,  not  unlike  in 
organization  American  political  parties  which  send  dele- 
gates to  various  grades  of  conventions,  culminating  in 
the  national  convention.  Since  the  dominating,  aggres- 
sive element  in  the  maze  of  revolutionary  factions  were 
the  Bolshevists,  these  secured  control  of  the  Government, 
and  are  seeking  to  put  their  pet  theories  into  effect.  These 
are  fundamentally  based  on  Marxian  socialism,  with  his 
teaching  of  national  ownership,  the  rule  of  the  proletariat, 
and  communal  regulation  of  education.  As  so  frequently 
in  revolutions,  the  radicals  in  command  have  become 
tyrannical  and  despotic,  so  that  Russia  in  the  short  space 
of  twenty  years  has  passed  through  all  varieties  of  gov- 
ernment from  autocratic  tsardom  to  the  despotic  rule  of 
ochlocratic  tyrants. 

15  For  translation  of  the  Russian  constitution  of  1918,  see  Inter- 
national Conciliation,  No.  136,  March,  1919. 


CHAPTER  XII 

THE  EXECUTIVE  DEPARTMENT 

The  Two  Functions  of  the  Executive  Department. 
— If  we  examine  more  closely  the  functions  of  the  so- 
called  executive  department,  we  shall  see  that,  broadly 
speaking,  there  are  two  distinct  sets  of  functions,  the 
one  properly  executive  and  the  other  administrative  in 
kind. 

I.  The  Powers  of  the  Executive. — The  head  of  the 
executive  department  represents  the  unity  and  personality 
of  the  state  in  the  conduct  of  governmental  functions, 
both  domestic  and  international.     As  a  titular  head  of 
the  state  he  acts  as  mouthpiece  for  the  state  in  its  inter- 
course with  its  citizens  and  with  the  representatives  of 
foreign  states.     In  performing  the  latter  duty  he  con- 
ducts diplomatic  negotiations,  is  in  command  of  the  army 
and  navy,  declares  war,  makes  peace,  negotiates  treaties, 
receives  and  sends  diplomatic  embassies,  and  appoints 
all  officials  who  assist  in  these  duties.    As  representative 
of  the  state  in  its  intercourse  with  its  citizens  he  inspects 
the  workings   of   the  governmental   system,   makes   or 
recommends  improvements,  and  from  time  to  time  makes 
announcements  of  policy. 

II.  Administrative     Powers. — The    performance     of 
governmental  functions  involves  a  vast  mass  of  adminis- 
trative  machinery,   complicated  in  its   mechanism,   and 
expensive  and  cumbersome  in  its  workings.     The  head 

182 


THE  EXECUTIVE  DEPARTMENT  183 

of  the  executive  is  also  the  head  of  the  administration; 
as  such  he  has  large  ordinance  powers,1  appoints  its 
officers,  organizes  its  departments,  assigns  to  each  its 
respective  functions,  and  oversees  the  working  of  the 
entire  administration,  enforcing,  if  necessary,  his  orders 
and  the  law  of  the  land  by  means  of  the  war  and  police 
powers  placed  in  his  hands,  and  by  his  power  to  compel 
recalcitrant  officials  to  resign. 

Through  these  two  sets  of  powers  he  maintains  peace 
at  home  and  abroad,  makes  war  and  suppresses  insur- 
rections when  necessary,  and  supervises  the  entire  work- 
ings of  government  so  as  to  insure  the  prosperity  and 
development  of  the  state.  Powers  so  enormous  are  too 
onerous  and  arduous  for  one  man,  and,  moreover,  if  left 
entirely  in  his  hands,  might  easily  make  him  tyrannical, 
hence  there  have  developed  numerous  devices  intended 
either  to  lighten  his  burdens  or  to  check  his  power. 
These  will  be  explained  more  in  detail  in  connection  with 
later  discussions  in  regard  to  the  development  and  powers 
of  cabinets  and  of  the  judicial  and  lawmaking  depart- 
ments. 

THE  EXECUTIVE  HEAD 

The  Development  of  Leadership. — As  already  ex- 
plained (Chapter  III)  there  are  many  variations  in 
political  development  owing  to  widely  differing  condi- 
tions. Yet  the  process  is  so  similar  that  a  type  of  gov- 
ernmental development  can  be  set  forth  which  is  practi- 
cally identical  everywhere.  The  starting  point  is  the 
body  of  older  and  wiser  men  found  at  the  head  of  the 
group  in  all  early  systems  of  organization.  This  body 

1  See  pages  279-280.  • 


184      THE  STATE  AND  GOVERNMENT 

may  consist  of  men  eligible  because  of  age  and  conse- 
quent wider  experience  and  knowledge;  or  of  heads  of 
smaller  groups  such  as  families  or  war  bands;  or  of  men 
who  by  natural  talent  have  shown  themselves  worthy 
of  a  place  in  the  council.  Among  these  the  oldest  or  the 
wisest  or  the  head  of  the  leading  group  or  the  most 
capable  leader  in  battle  would  naturally  gravitate  to  the 
headship,  whether  attained  by  right  of  birth,  by  free 
choice,  or  as  in  many  instances,  by  force.  In  this  coun- 
cil, with  its  head,  we  have  the  beginnings  of  modern 
political  organization,  the  development  of  which  will  now 
be  indicated. 

The  head,  as  already  suggested,  might  attain  his 
supremacy  through  force.  History  is  filled  with  records 
of  great  leaders  who  by  their  ability  in  war  have  founded 
states  and  dynasties.  Under  these  circumstances  it  is  a 
natural  tendency  for  sucfi  a  leader  to  seek  to  hand  on 
his  power  to  the  members  of  his  own  family,  an  ambition 
readily  suggested  by  the  hereditary  rights  of  the  fathers 
in  a  patriarchal  system.  Even  if  the  head  of  a  state 
were  chosen  by  the  free  votes  of  the  council,  the  natural 
fondness  for  power  inherent  in  the  human  heart  would 
tend  to  develop  intrigues  for  the  perpetuation  of  power 
in  the  family.  In  this  way  there  developed  in  all  kinds 
of  advanced  political  groups  hereditary  rule,  based  on 
the  analogy  of  the  patriarchal  system  and  appropriating 
from  it  its  notion  of  divine  right  and  authority.  From 
the  council  were  selected  intimate  advisers,  assistants  in 
the  administration  of  business,  and  personal  attendants. 

Rise  of  Monarchy. — As  the  wealth  and  power  of 
the  state  increased,  leadership  became  kingship,  and 
the  classes  of  officials  developed  definite  functions  as  an 
advisory  cabinet,  as  heads  of  administrative  departments, 


THE  EXECUTIVE  DEPARTMENT  185 

and  as  a  court  retinue.  Among  these  offices  came 
graduations  in  importance  as  system  and  differentiation 
became  necessary.  This  gave  to  the  cabinet  a  chief,  or 
prime,  minister.  All  these  offices  at  the  beginning  were 
under  the  control  of  the  king,  who  might  appoint  or 
remove  at  pleasure.  But  the  desire  for  hereditary  power 
influenced  office-holders  also.  Many  of  the  most  impor- 
tant offices  became  hereditary,  resulting  in  the  rise  of  a 
class  of  nobility,  holding  wealth  and  office  by  inherited 
right,  and  steadfastly  supporting  royal  power  as  essen- 
tial to  their  own.  The  rise  of  the  church  in  importance 
developed  a  similar  class  among  the  superior  priesthood, 
who  also  faithfully  supported  the  king  in  return  for  his 
promotion  of  ecclesiastical  interests.  This  furnishes  us 
the  type  for  an  autocratic  monarchy,  whose  head,  ruling 
by  hereditary  and  divine  right,  was  deemed  a  mouthpiece 
and  vicegerent  of  the  gods,  and  who  might  himself  be- 
come a  god  at  his  death.  Changes  of  dynasty  might  take 
place,  kingship  founded  on  divine  right  might  become  a 
shadow  power,  the  substance  of  which  was  held  by  the 
great  nobles,  the  ranks  of  the  nobility  and  of  the  priest- 
hood might  be  recruited  from  capable  men  of  lower 
ranks,  but  whatever  the  differences  in  detail,  such  auto- 
cratic monarchies  developed  in  many  parts  of  the  world, 
ruling  millions  of  people  and  inculcating  into  men's 
minds  principles  of  law,  order,  submissiveness,  and  re- 
spect for  authority.  Such  monarchies  in  modern  days 
are  rapidly  passing  away,  but  survivals  of  them  may  be 
noted  in  Siam  and  among  the  native  dependent  princes 
of  India. 

Royal  Power. — Kingship  has  played  so  important  a 
part  in  the  political  history  of  the  human  race  that  the 
tendencies  in  regard  to  that  office  are  well  worth  noting. 


186      THE  STATE  AND  GOVERNMENT 

In  early  political  systems  the  king  was  merely  primus 
inter  pares  and  exerted  an  influence  proportionate  to  the 
strength  of  his  personality  and  his  ability  in  action.  In 
despotic-autocratic  systems  he  was  by  theory  supreme, 
irrespective  of  his  capacity  or  personality.  In  practice, 
however,  there  were  limitations  that  often  made  the  king 
a  mere  puppet.  Enervating  luxury  and  sensual  tempta- 
tions were  at  his  command;  etiquette  and  ceremony,  re- 
ligious requirements,  customs  and  precedents  of  long 
standing,  all  fettered  his  individuality  and  repressed  his 
initiative.  Again,  the  necessity  of  delegating  to  others 
the  business  of  the  state,  and  of  depending  on  them  or 
secret  service  for  knowledge  of  conditions  hampered 
him.  The  red  tape  of  a  bureaucratic  system  was  om- 
nipresent and  secret  influences  were  always  at  work  to 
thwart  or  to  dethrone  him.  It  is  not  at  all  strange,  there- 
fore, that  autocracy  tends  to  be  a  dreary  record  of 
tyranny,  misrule,  extortion,  and  oppression. 

The  King  Limited  by  Constitution. — The  system, 
obviously,  conspired  to  make  him  ruler  in  name  only, 
and  to  transfer  the  real  power  to  others  eager  for  their 
own  advancement.  As  a  matter  of  fact,  the  power  actu- 
ally exerted  by  an  autocratic  king  and  his  council  is  not 
to  be  compared  with  the  power  exerted  by  the  executiv^eT 
and  his  cabinet  in  a  modern  democracy.  The  one  exerts 
power  in  a  spasmodic,  spectacular  way  and  is  chiefly  con- 
cerned with  taxation  and  warring,  but  the  other,  know- 
ing just  what  he  can  and  cannot  constitutionally  do~i 
exerts  a  powerful  continuous  influence  within  his  sphere 
that  far  outweighs  the  irregular  activities  of  a  monarth 
theoretically  autocratic  but  practically  restricted  on  every 
hand  in  matters  of  importance.  The  movement,  there^ 
fore,  already  outlined,  whereby  the  larger  part  of  the 


THE  EXECUTIVE  DEPARTMENT  187 

power  of  modern  rulers  has  been  transferred  to  the  other 
departments  of  government,  does  not  imply  that  the 
executive  head  has  really  lost  power.  It  means  that  his 
authority  has  been  restricted  to  activity  along  certain 
definite  lines,  but  within  those  bounds  he  may  happen 
to  exercise  a  totality  of  powers  far  in  excess  of  the 
amount  of  power  exerted  by  his  autocratic  predecessors. 
This  is  even  more  true  because  of  the  remarkable  exten- 
sion of  governmental  activity  within  the  last  one  hundred 
years.  During  this  period  the  scope  of  governmental 
activity  has  multiplied  by  leaps  and  bounds.  The  execu- 
tive power  of  the  President  of  the  United  States  of 
America  is  an  excellent  illustration  of  this  principle.  He 
exerts  a  far  wider  and  more  powerful  influence  than  did 
the  Tsar  of  Russia  and  probably  wields  more  authority 
than  any  other  executive  on  earth.  Even  the  King  of 
Great  Britain,  shorn  apparently  of  all  his  authority, 
probably  exerts  a  deeper  personal  influence  over  the 
affairs  of  the  empire  than  did  the  Tsar,  who,  though  by 
theory  autocratic,  was  yet  checked  on  every  side  by  a 
powerful  bureaucracy  and  was  repressed  by  the  constant 
fear  of  assassination  or  revolution. 

Types  of  Governmental  Headship. — The  existing 
governments  of  the  world  well  illustrate  the  various 
stages  of  headship  and  royal  authority.  The  rule  of 
chiefs  surrounded  by  bodies  of  elders  is  common  among 
the  native  races  of  South  America,  Africa,  and  northern 
Asia.  Patriarchal  authority  is  well  illustrated  in  the 
petty  principalities  of  India  and  in  the  newly  formed 
Arabian  kingdom  of  Hejas;  divinity  in  kingship  is  seen 
in  the  attitude  of  the  Japanese  towards  their  Emperor; 
and  Great  Britain  and  the  Scandinavian  kingdoms  have 
developed  constitutional  kingship  to  its  fullest  extent. 


188      THE  STATE  AND  GOVERNMENT 

One  important  effect  of  the  Great  War  lay  in  the  destruc- 
tion of  the  historic  Empires  of  Russia,  Germany,  and 
Austria-Hungary  with  their  hosts  of  environing  nobles 
and  federated  kingdoms.  Obviously  the  present  trend  is 
away  from  hereditary  monarchs  to  the  system  of  elective 
headships. 

When  kingship  is  superseded  by  an  elective  headship, 
similar  variations  in  power  are  possible.  The  President 
of  Mexico  is  practically  an  autocrat  ruling  under  the 
forms  of  a  republic,  the  President  of  the  United  States 
of  America,  as  already  indicated,  is  perhaps  the  most 
powerful  of  modern  rulers,  due  to  the  fact  that  his 
powers  are  delegated  and  named  in  the  Constitution;  yet 
he  could  easily  be  removed  by  impeachment  if  he  tried 
to  become  despotic.  The  President  of  France,  like  the 
English  King,  is  a  nominal  ruler  of  few  powers,  though 
in  form  and  by  intention  the  office  was  made  powerful; 
the  President  of  Switzerland  is  merely  the  chairman  of 
an  executive  committee  which  administers  executive 
functions  under  the  direction  of  the  Federal  Assembly. 
The  President  of  Germany  apparently  exerts  small  influ- 
ence in  government,  though  that  may  be  due  to  his  lack 
of  personality  rather  than  to  his  office.  On  the  other 
hand  the  Russian  Dictator  Lenine  seems  to  be  more 
tyrannical  and  autocratic  in  his  powers  than  was  the 
Tsar  himself  and  like  him  he  lives  in  constant  fear  of 
the  bullet  or  revolution.  It  is  evident  that  under  present 
conditions  the  type  toward  which  all  modern  states  seem 
to  be  tending  is  a  headship  vested  in  either  an  hereditary 
monarch  or  in  an  elected  president,  whose  powers  will  be 
carefully  defined  by  constitution,  and  hedged  about  with 
numerous  restrictions  aiming  to  secure  responsibility  and 
efficient  service  in  behalf  of  the  citizen  body.  The  real 


THE  EXECUTIVE  DEPARTMENT  189 

power  of  the  executive,  in  those  states  where  the  cabinet 
system  of  government  prevails,  is  held  by  the  cabinet, 
headed  by  its  premier. 

THE  CABINET 

The  Autocratic  Type. — The  movement  of  power 
from  the  executive  head  to  his  cabinet  is  clearly  illus- 
trated by  the  three  great  systems  of  cabinets  existing  in 
modern  times.  As  the  business  of  the  state  increases  in 
amount  and  complexity,  numerous  departments  are 
formed,  each  devoting  itself  to  some  special  line  of 
administrative  activity.  Some  of  these  departments  will 
naturally  be  more  important  than  others,  and  the  heads 
of  these  must  frequently  consult  with  the  head  of  the 
state  in  making  important  decisions.  These  influential 
heads  form  the  nucleus  about  which  the  king  gathers  his 
advisory  council,  formed  by  adding  such  persons  as  seem 
worthy  on  account  of  their  wisdom  and  standing  in  the 
community,  or  their  achievements  in  public  service.  In 
such  a  system  as  this  we  have  a  council,  able  to  give  the 
king  both  general  and  special  advice,  whose  members  are 
appointed  by  him  and  are  individually  responsible  only 
to  him.  Such  a  council  may  divide  into  circles,  in  which 
case  the  cabinet  will  be  the  inner  circle  that  regularly 
advises  the  king  in  the  most  important  affairs  of  the 
kingdom,  the  larger  circle  being  summoned  only  on  for- 
mal occasions  or  for  special  emergencies.  This  is  the 
basal  form  for  cabinets  in  autocracies,  such  as  was 
Russia  in  the  nineteenth  century  and  as  types  of  modern 
variations  from  this  will  now  be  explained  the  cabinet 
systems  of  Japan,  Great  Britain,  and  the  United  States 
of  America. 


ipo      THE  STATE  AND  GOVERNMENT 

Japan. — Japan  at  present  is  the  only  one  of  the 
Great  Powers  that  retains  a  close  approximation  to  an 
autocracy.  The  Emperor  has  divine  attributes,  coming 
as  he  does  from  a  line  of  rulers  "unbroken  for  ages 
eternal/'  and  the  Constitution  of  the  Empire  is  a  grant 
from  him  to  his  subjects,  all  or  any  part  of  which  is  in 
theory  revokable  at  his  pleasure. 

The  Constitution,  prepared  chiefly  by  a  Commission 
headed  by  Count  Ito,  was  modeled  after  the  German 
Constitution  as  it  was  in  the  decade  of  1880-90  when 
Bismarck  was  Imperial  Chancellor.  In  the  Constitution 
provision  is  made  for  a  Prime  Minister  (Minister  Presi- 
dent) and  Ministers  of  State  who  shall  be  responsible 
for  the  advice  given  to  the  Emperor  and  each  of  whom 
shall  be  responsible  for  the  acts  or  ordinances  he  indi- 
vidually signs.  In  practice  this  responsibility  is  not  to 
the  Emperor,  who  keeps  aloof  from  politics;  nor  to  the 
Imperial  Diet,  or  Parliament,  which  has  no  power  to 
compel  the  resignation  of  a  Cabinet;  nor  are  the  indi- 
vidual Ministers  named  by  the  Prime  Minister  and 
responsible  to  him.  If  the  Emperor  happened  to  have  a 
decided  dislike  to  a  particular  person,  presumably  his 
wish  would  have  great  weight,  or  if  the  Lower  House 
of  the  Diet  refused  to  favor  measures  recommended  by 
a  Minister,  and  persisted  in  its  refusal,  the  inconvenience 
of  friction  might  bring  about  his  removal  from  office, 
but  the  Diet  itself  would  have  no  voice  in  naming  his 
successor. 

Japan's  Bureaucracy. — In  Japan  the  administration 
or  bureaucracy  is  strongly  organized  and  possesses  the 
actual  power  of  government,  though  it  is  largely  influ- 
enced in  important  decisions  by  the  unofficial  advice  of 
the  surviving  Genro  or  Elder  Statesmen  who  established 


THE  EXECUTIVE  DEPARTMENT  191 

Japan  on  its  reorganized  basis.2  It  is  the  bureaucracy 
voiced  by  its  great  leaders  that  really  determines  the  per- 
sonnel of  the  Cabinet.  If  a  reorganization  becomes 
necessary  through  changing  conditions  or  on  account  of 
friction  with  the  Lower  House,  the  personnel  of  the  new 
Cabinet  will  be  suggested  to  the  Emperor  by  the  Genro, 
voicing  the  bureaucracy,  and  will  presumably  include 
several  members  of  the  retiring  Ministry.  The  members 
of  the  Cabinet  are  selected  from  the  leaders  of  the 
bureaucracy  itself  and  hence  voice  the  administration,  not 
the  dominant  political  party  or  party  coalition  in  the  Diet 
that  disapproved  of  the  retiring  Ministry.  In  fact  mem- 
bers of  the  Lower  House  are  rarely  members  of  the  Min- 
istry, who  yet  have  the  right  to  speak  in  either  House, 
though  of  course  they  vote  only  if  they  happen  to  be 
members  in  one  or  the  other.  Since  the  Cabinet,  then, 
is  the  exponent  of  the  administration  as  a  whole,  the 
Prime  Minister  has  not  large  powers  by  virtue  of  his 
office,  though  by  intention  it  was  expected  that  he  would 
occupy  a  place  in  the  Japanese  system  similar  to  that  of 
the  German  Chancellor.  He  tends  to  be  merely  chairman 
of  the  Cabinet,  which  unitedly  is  responsible  for  the  acts 
of  its  members  and  for  its  own  policy  to  the  Genro  or  to 
the  heads  of  the  bureaucracy. 

The  Japanese  system  of  cabinet  government,  there- 
fore, is  obviously  based  on  autocratic  ideas,  except  that 
the  real  power  has,  in  fact,  largely  passed  from  the  Em- 
peror to  the  administration,  being  entirely  too  burden- 
some for  any  one  man ;  at  present  the  popular  will  voiced 
by  the  Lower  House  of  the  Diet  is  not  able  to  dictate  the 


'Just  as  in  the  United  States  of  America,  the  opinions  of  John 
Adams,  Jefferson,  and  Madison  wbile  they  lived  had  great  weight 
in  national  policy  after  their  retirement  from  office. 
* 


192  THE  STATE  AND  GOVERNMENT 

personnel  of  the  Cabinet  and  consequently  has  little  in- 
fluence on  policy.  One  might  surmise  that  within  a  gen- 
eration this  situation  will  be  changed  and  a  far  more 
democratic  condition  will  prevail  in  Japan,  though  pre- 
sumably at  the  cost  of  governmental  efficiency. 

Great  Britain.3 — In  Great  Britain  also,  as  in  Japan, 
there  is  a  vast  array  of  administrative  departments,  but 
these  are  not  to  be  thought  of  as  unitedly  a  well  organ- 
ized bureaucracy  dominating  executive  policy.  Rather 
these  are  considered  as  subordinated  to  the  Ministry  or 
Cabinet.  Members  of  the  Cabinet  are  individually,  as  a 
rule,  each  in  charge  of  a  department  of  administration, 
but  they  are  in  charge  of  administration  because  they  are 
Cabinet  members.  They  are  not  Cabinet  members  be- 
cause they  are  leaders  in  administration,  as  is  the  case  in 
Japan. 

If  as  the  result  of  a  national  election  an  existing  Cabi- 
net finds  itself  in  the  minority  in  the  newly-elected  House 
of  Commons,  the  Prime  Minister,  or  Premier,  and  the 
other  members  of  the  Cabinet  submit  their  resignations 
to  the  King  with  the  recommendation  that  the  leader  of 
the  opposition  party,  having  a  majority  in  the  House,  be 
appointed  Prime  Minister.  According  to  precedent  the 
King  will  comply  with  this  recommendation  and  the  new 
Premier  will  then  recommend  from  the  list  of  his  party 
leaders  suitable  men  to  head  the  numerous  departments 
of  administration,  selecting  from  these  the  most  impor- 
tant, usually  about  twenty,  to  form  a  Cabinet.4  This 
Cabinet  under  the  leadership  of  the  Premier  formulates 

'  In  this  connection  see  Ogg,  Governments  of  Europe,  Part  I,  re- 
vised ed.,  1920. 

*  During  the  Great  War  the  inconvenience  of  having  to  consult 
so  large  a  body  resulted  in  the  appointment  of  an  inner  War 
Cabinet  of  five-six  members  for  the  period  of  the  war. 


THE  EXECUTIVE  DEPARTMENT  193 

national  executive  and  legislative  policy  and  thus  has  in 
charge  the  general  management  of  the  Empire.  Its 
membership  must  always  be  made  up  of  members  of  one 
or  the  other  House  of  Parliament,  and  each  set  of  mem- 
bers may  speak  and  vote  in  its  own  House  but  not  in  the 
other.  This  is  a  serious  handicap  in  some  respects  and 
results  in  the  selection  preferably  of  the  most  important 
working  members  from  the  lower  House  so  that  they 
may  be  able  to  have  voice  in  the  dominant  house.  Cabi- 
net meetings  are  informal,  without  written  records,  and 
the  sessions  are  secret.  The  members  decide  on  a  com- 
mon policy,  sink  their  individual  opinions,  and  stand  or 
fall  unitedly.  The  Cabinet  having  a  united  responsibility 
retains  office  as  long  as  it  can  control  a  majority  in  the 
House  of  Commons.5  If  defeated  on  some  fundamental 
question  of  policy,  a  new  election  is  ordered  and  the 
successful  party  assumes  the  reins  of  power. 

This  system  is  built  up  on  the  supposition  that  there 
are  always  two  great  parties,  the  party  in  power  and  the 
opposition.  Should  in  later  elections  the  newer  parties 
— Labor  and  Socialist — gain  such  strength  that  no  one 
party  has  a  clear  majority,  then  the  English  cabinet  sys- 
tem must  undergo  some  changes  and  become  more  like 
those  on  the  continent,  France,  for  example,  where  many 
small  parties  exist,  by  contrast  with  the  present  two- 
party  system  of  the  British-American  world.  In  France 
the  Cabinet  is  made  up  of  a  coalition  of  the  leaders  of 
kindred  parties,  the  effect  of  which  is  to  weaken  the 
power  of  the  Cabinet  itself  and  to  increase  proportion- 
ately the  power  of  the  lower  House,  the  Chamber  of 
Deputies.  In  passing,  it  may  be  said  that  the  British 

BIn  France  the  interpellation  is  used  for  the  purpose  of  over- 
throwing ministries. 


194      THE  STATE  AND  GOVERNMENT 

system  of  cabinet  government,  with  modifications,  is 
used  by  most  modern  governments,  though  there  is  a 
partial  influence  from  the  United  States  of  America  to 
be  found  among  the  Latin-American  states. 

United  States  of  America.— The  third  type  of  cabi- 
net is  that  of  the  United  States  and  is  a  sort  of  combina- 
tion of  the  other  two  but  with  variations  of  its  own.  A 
President  on  taking  office,  receives  the  resignations  of 
the  administrative  heads  of  departments.  He  then,  with 
the  formal  approval  of  the  Senate,  which  is  rarely  re- 
fused even  though  its  majority  membership  be  of  the 
opposing  political  party,  appoints  other  heads  selected 
almost  invariably  from  the  ranks  of  his  own  party.  No 
member  of  Congress  is  eligible  for  such  office,  though  he 
may  resign  and  then  accept  the  appointment.  The  heads 
of  the  ten  great  Departments  by  custom  are  considered 
as  a  sort  of  Cabinet  with  which  the  President  may  con- 
sult. The  President  is  himself  responsible  for  executive 
policy  and  administration  and,  therefore,  is  not  bound 
to  consult  the  Cabinet  or  to  be  guided  by  its  advice.  It 
meets  at  his  call,  discusses  such  business  as  he  may  sub- 
mit to  it  or  such  as  he  may  permit  to  be  discussed,  and 
he  may  make  decisions  in  flat  opposition  to  their  ex- 
pressed opinion.  Since  its  members  are  appointed  by 
him,  and  may  be  dismissed  by  him  at  will  without  the 
consent  of  the  Senate,  its  powers  and  prestige  depend 
entirely  upon  his  personality.  He  may  on  the  one  hand 
consult  them  regularly  and  defer  to  their  opinion,  or  by 
contrast  he  may  call  them  together  irregularly,  consult 
them  in  a  perfunctory  manner,  and  inform  them  of  his 
decisions  irrespective  of  their  advice  and  opinion.  Their 
real  duties,  therefore,  are  administrative,  not  political, 
and  since  they  are  not  responsible  for  their  political  ad- 

* 


THE  EXECUTIVE  DEPARTMENT  195 

vice  if  asked  they  are  under  no  necessity  of  resigning 
from  office  through  difference  of  opinion.  Even  as  ad- 
ministrative heads  they  are  responsible  to  the  President, 
who  by  Constitution  is  head  of  the  Administration  and 
hence  may  determine  their  policies  if  he  desires.  Being 
administrative  officers,  they  have  no  rights  to  the  floor 
of  either  House,  since  under  the  theory  of  separation  of 
powers  the  executive  department  should  have  no  voice 
in  the  formulation  of  law.  Their  chief  influence  on  leg- 
islation is  through  recommendations  made  to  Congress 
by  the  President  and  through  hearings  of  Congressional 
committees  before  which  they  may  be  invited  to  explain 
or  comment  on  bills  affecting  their  several  Departments. 

Contrasts  in  These  Types. — Contrasts  between 
these  three  systems  of  cabinet  are  obvious  and  can  read- 
ily be  made.  No  one  of  these  can  be  considered  as  in- 
herently best,  since  each  is  suited  to  its  peculiar  situation 
and  works  best  under  its  own  environment.  Japan, 
under  the  necessity  of  passing  rapidly  from  feudalism 
into  modern  political  life  of  a  rather  intense  sort,  deemed 
it  best  to  develop  a  powerful,  highly  centralized  bureau- 
cracy able  to  determine  policy  and  to  force  the  nation  to 
the  front  in  world  politics.  A  cabinet  as  the  tool  or  voice 
of  this  bureaucracy  was  inevitable.  When  Japan's  posi- 
tion among  the  world  powers  becomes  assured,  presum- 
ably it  will  tend  to  develop  along  British  or  French  lines 
and  have  its  Cabinet  represent  the  dominant  will  of  the 
Imperial  Diet.  Great  Britain,  a  world  empire,  demo- 
cratically organized,  naturally  concentrates  power  in  a 
body  that  can  command  legislation  and  appropriations 
and  subordinates  to  this  body  both  King  and  adminis- 
tration. 

The  United  States  of  America,  for  a  century  free  from 


196      THE  STATE  AND  GOVERNMENT 

foreign  complications  of  a  disturbing  sort  (down  to 
1914),  felt  no  need  of  concentrating  power  either  in 
Executive  or  Congress,  but  divided  responsibility  be- 
tween these.  The  Great  War  brought  about  a  crisis,  re- 
sulting in  the  concentration  of  national  authority  in  the 
executive  head  by  legislative  grants  of  power.  The 
strain  proved  too  burdensome  for  the  President,  who 
became  incapacitated  through  illness,  fortunately  not 
until  after  the  proclamation  of  the  armistice  and  the  for- 
mulation of  a  treaty  of  peace.  Even  in  normal  times  the 
President  has  too  great  responsibility,  and  henceforth  a 
new  system  should  be  devised  that  would  allow  for  a 
group  responsibility  of  some  sort.  Unfortunately  cus- 
tom and  the  Constitution  are  opposed  to  change,  and  the 
separation  of  powers  set  by  the  Constitution  will  prove 
a  serious  hindrance  to  any  possible  plan  for  the  concen- 
tration of  responsibility  into  a  group  representing  both 
the  executive  and  legislative  functions. 

It  would  be  legally  possible,  however,  provided  the 
President  gave  consent  and  the  Congress  acquiesced,  to 
concentrate  the  burden  of  administrative  responsibility 
on  some  one  of  the  departmental  heads,  the  Secretary  of 
the  Treasury,  for  example,  making  him  a  sort  of  premier 
over  administration,  and  thus  allow  the  President  to  de- 
vote himself  to  the  purely  executive  aspect  of  his  duties, 
retaining  a  nominal  supervisory  power  over  his  admin- 
istrative duties.  In  any  event  the  enormous  powers  of 
the  President,  over  so  great  an  empire  as  that  of  the 
United  States,  are  obviously  too  great  for  any  one  man's 
endurance;  the  historic  remedy  has  always  been  found  in 
the  transference  of  power  to  a  political  cabinet  or  to  a 
body  of  administrative  heads. 


CHAPTER  XIII 

ADMINISTRATIVE  ORGANIZATION 

Differentiation  of  Administration. — Modern  states 
vary  largely  in  the  amount  and  kinds  of  business  to  be 
administered,  so  that  there  is  no  close  uniformity  in  ad- 
ministrative organization.  Yet  there  are  broad  lines  of 
development  common  to  all  advanced  states,  well  worthy 
of  emphasis,  and  these  will  be  briefly  indicated. 

I.  Differentiation  into  Branches  of  Administration. 
— The  council  of  elders  in  primitive  government,  headed 
by  its  chief  or  chiefs,  performed  as  a  unit  all  kinds  of 
governmental  business.  As  states  increased  in  size,  ad- 
ministrative duties  multiplied  correspondingly  and  in 
time  became  too  arduous  and  too  important  to  be  longer 
intrusted  to  the  spasmodic  activities  of  a  general  council. 
Specialization  began,  each  important  branch  of  activity 
being  intrusted  to  those  members  of  the  council  especially 
interested  in  that  particular  function,  while  at  the  same 
time  the  body  as  a  whole  remained  with  general  super- 
visory powers,  integrating  thereby  the  differentiated  ac- 
tivities of  the  specializing  departments.  Every  new 
national  function  of  a  permanent  sort  would  necessitate 
the  organization  of  a  new  branch  of  administration, 
which  would  relate  itself  to  kindred  branches,  so  that 
there  would  slowly  form  in  due  time  a  mass  of  coordi- 
nated divisions  or  bureaus  of  administration,  the  heads 
of  which,  as  members  of  the  great  council,  would  work 

197 


198      THE  STATE  AND  GOVERNMENT 

together  under  the  general  oversight  of  the  executive 
head,  or  a  chief  of  administration.  This  slow  differen- 
tiation and  integration  of  administrative  organizations 
is  characteristic  of  all  developing  governments,  and  at  its 
maximum  in  great  empires  forms  an  exceedingly  com- 
plex hierarchy  of  organizations  and  officials,  unitedly 
making  a  considerable  part  of  the  overhead  expenses  of 
government. 

II.  Differentiation  of  the  Religious  Function. — In  so- 
cial evolution  institutions  often  change  in  spirit  while 
retaining  their  old  form  and  hence  may  seek  other  affilia- 
tions than  those  once  considered  natural.  Religion,  for 
example,  was  once  very  closely  identified  with  the  state, 
cooperating  with  it  in  war  and  allied  with  it  in  the  preser- 
vation of  domestic  peace.  But  with  changing  civilization 
religion  added  many  peaceful  functions,  such  as  philo- 
sophic inquiry,  religious  speculations,  and  tasks  of 
an  aesthetic  and  educational  aspect.  There  came  a  tend- 
ency, therefore,  for  the  church  to  draw  apart  from  the 
state,  while  still  cooperating  with  it,  so  as  to  devote  itself 
to  its  more  important  tasks  of  growth  in  spiritual  and 
intellectual  life.  In  this  fashion  the  ecclesiastical  organi- 
zation tended  to  separate  itself,  in  part  at  least,  from 
the  political  organization,  as  already  previously  ex- 
plained,1 so  that  in  due  time  the  organization  devoted  to 
the  observance  and  maintenance  of  worship  and  religious 
rites  ceased  to  be  considered  in  many  states  as  part  of  the 
governmental  administrative  organization.  In  other 
states,  however,  the  support  and  encouragement  of  re- 
ligion is  classed  as  a  state  function,  but  the  connection 
between  church  and  state  varies  from  a  close  unity,  as  in 
Turkey  or  Japan,  to  an  almost  nominal  connection,  as  in 
1  Pages  91-94. 


ADMINISTRATIVE  ORGANIZATION  199 

Italy.  The  United  States  of  America  and  the  United 
States  of  Mexico  best  illustrate  a  real  separation  between 
these  two  great  institutions. 

III.  Differentiation  of  the  Judicial  Function. — The 
development  next  in  importance  was  the  differentiation 
that  developed  between  the  judicial  business  of  the  state 
and  its  other  administrative  powers.  As  the  state  as- 
sumed jurisdiction  over  violations  of  the  peace  of  the 
state  and  over  disputes  in  regard  to  the  ownership  of 
private  property,  the  work  devolving  on  the  chief  offi- 
cials became  so  onerous,  and  at  the  same  time  so  impor- 
tant, in  that  it  affected  the  lives  and  property  of  the  entire 
community,  that  it  was  gradually  intrusted  to  special 
officials.2  These  became  expert  in  the  law  of  the  land 
and  trained  in  the  application  of  the  law  to  the  numerous 
cases  of  every  sort  likely  to  arise  among  contentious  per- 
sons in  a  complex  civilization.  There  developed, 
therefore,  numerous  courts  exercising  widely  varying 
jurisdiction,  but  at  first  not  coordinated  nor  especially 
efficient.  Later,  the  importance  of  their  work  was  so 
thoroughly  realized  that  progressive  states  early  devel- 
oped efficiency  in  this  branch  of  administration,  as  in  the 
case  of  England  under  the  Plantagenets.  Movements 
toward  democracy  also  have  regularly  fought  for  system 
and  justice  in  judicial  administration;  the  radicals  of 
Cromwell's  time,  for  example,  pathetically  desired  the 
law  to  be  so  simplified  that  even  the  common  man  might 
understand  its  rules  and  procedure. 

Although  in  practically  all  states  the  judicial  system 
is  now  organized  apart  from  the  ordinary  administrative 
system,  the  executive  has  regularly  striven  vigorously  to 

"Note  an  illustration  of  this  in  Moses'  career,  Exodus  XVIII, 
13-26. 


200      THE  STATE  AND  GOVERNMENT 

control  the  courts  so  as  to  enhance  his  power.  The 
movement,  however,  in  all  democratic  countries  is  to- 
ward a  separation  between  the  two ;  the  judiciary  is  freed 
as  much  as  possible  from  executive  control,  and  placed 
preferably  under  the  control  of  the  lawmaking  body  and 
the  electorate,  under  the  theory  that  thereby  the  rights 
of  the  people  will  be  more  fully  safeguarded.  This  for- 
mal separation  has  taken  place  most  completely  in  Brit- 
ish-American governments,  but  close  approximations  to 
such  systems  may  be  found  in  other  modern  states. 

IV.  Differentiation  of  Lawmaking. — A  fourth  dif- 
ferentiation consists  in  the  gradual  separation  of  a  law- 
making  body  from  the  council  with  its  deliberative  and 
supervisory  powers.  This  development  will  be  traced 
more  fully  in  later  chapters,3  but  the  importance  of  the 
change  may  be  indicated  from  two  standpoints: 

(a)  Modern  lawmaking  bodies  in  their  present  form 
aim  to  voice  the  will  of  the  people  as  a  whole,  and  hence 
represent  a  democratic  tendency ;  the  earlier  system  regu- 
larly voiced  class  interests  to  the  neglect  of  the  rights  of 
the  masses,  (b)  Such  bodies  have  introduced  slowly  a 
process  of  lawmaking  hitherto  unknown,  and  the  result 
of  the  innovation  has  wonderfully  increased  the  possi- 
bility of  progress.  All  ancient  law  was  custom,  and  cus- 
toms change  slowly.  Modern  legislation  assumes  the 
right  to  abolish  some  customs,  to  alter  others,  and  to 
make  new  ones,  in  every  case  compelling  the  people  to 
conform  to  the  new  law.  Even  a  constitution  may  be 
formulated,  thus  necessitating  the  reorganization  of  gov- 
ernment so  as  to  harmonize  with  the  new  requirements. 
This  legislative  development  furnishes  at  least  the  pos- 
sibility of  progress,  even  though  in  actual  experience 
1  Chapters  XV,  XVI. 


ADMINISTRATIVE  ORGANIZATION  201 

many  laws  are  so  vicious,  absurd,  and  conflicting  that  at 
times  much  of  legislation  becomes  a  weariness  to  the 
soul. 

V.  Differentiation  of  the  Electorate. — The  develop- 
ment of  an  electorate4  is  in  effect  a  differentiation  of  the 
same  sort  as  the  foregoing.  The  movement  toward  de- 
mocracy, in  seeking  ways  and  means  whereby  it  might 
check  tendencies  toward  executive  tyranny,  hit  on  the 
happy  expedient  of  bestowing  on  certain  classes  of  citi- 
zens, heretofore  unrepresented  in  government,  the  power 
to  make  by  election  appointments  to  important  offices. 
In  this  way  the  electorate  chooses,  more  or  less  com- 
pletely, according  to  the  strength  of  democracy  in  the 
several  states,  officials  to  make  laws,  to  have  charge  of 
executive  and  administrative  functions,  and  judges  to 
serve  on  the  judiciary.  In  more  recent  times  there  has 
developed  a  dread  of  legislative  tyranny,  and  in  conse- 
quence the  electorate  is  demanding  for  itself  direct  rights 
in  lawmaking.  This  is  shown  in  the  growing  use  of  the 
initiative  and  referendum5  and  in  popular  control  over 
the  making  of  the  fundamental  law. 

Administrative  Departments. — The  ancient  powers 
of  the  executive,  therefore,  once  so  enormous  through 
his  control  over  administration,  have  been  steadily  re- 
duced in  scope  by  transfers  of  power  to  the  church,  the 
judiciary,  the  lawmaking  body,  and  the  electorate.  The 
residue  of  powers  is  still  centered  in  the  executive  de- 
partment, but  in  place  of  one  great  council  administering 
all  such  powers,  there  have  been  formed  numerous  inter- 
related departments,  unified  in  the  cabinet  and  under  the 
authority  of  the  head  of  the  state,  but  differentiated  in 

4  See  Chapter  XVIII. 
8  See  pages  298-302. 


202      THE  STATE  AND  GOVERNMENT 

function.  These  administrative  departments  bear  differ- 
ent names  in  different  states  and  are  not  always  separated 
on  quite  the  same  lines.  Broadly  speaking,  however, 
there  will  be  departments  in  touch  with  international  re- 
lationships, such  as  war  and  diplomacy;  and  others  to 
administer  colonial  possessions,  if  any,  and  state  monop- 
olies such  as  the  postal  service,  railways,  telegraphs,  and 
mines;  and  to  regulate  important  divisions  of  economic 
life,  such  as  commerce,  agriculture,  and  manufacturing. 
There  will  be  departments  also  for  the  regulation  and 
support  of  education  and  religion,  if  religion  is  con- 
trolled by  government,  and  for  the  management  of  ad- 
ministrative judicial  business  and  public  finance,  and  for 
the  supervision  or  control  of  local  administration.6 

Each  department  in  charge  of  any  particular  function 
may  itself  be  specialized  and  include  several  subdivisions, 
such  as  the  American  bureaus  and  divisions.  The  sev- 
eral departments  of  administration  may  be  so  loosely 
supervised  that  each  is  practically  independent  of  the 
others  and  almost  without  supervision.  On  the  other 
hand,  they  may  be  closely  coordinated  and  strongly  cen- 
tralized under  the  executive,  as  in  the  French  or  Japanese 
cabinet  system.  The  commonwealths  of  the  United 
States  of  America  furnish  the  best  illustrations  of  a 
loosely  coordinated,  poorly  supervised  administrative  sys- 
tem in  state  and  city  organization.  Many  departments, 
commissions,  and  boards  have  been  organized  with  dele- 
gated powers,  and  these  conduct  their  affairs  almost 
without  supervision  and  often  with  but  slight  thought  of 

9  In  the  United  States  the  Departments  are,  in  order  of  organiza- 
tion, State,  Treasury,  War,  Justice,  Post  Office,  Navy,  Interior, 
Agriculture,  Commerce,  and  Labor.  In  addition  to  these  there  are 
many  detached  bureaus  and  commissions  having  miscellaneous 
functions. 


ADMINISTRATIVE  ORGANIZATION  203 

cooperation.  There  is,  however,  a  strong  tendency  to 
consolidate  and  to  centralize  these  departments  and  to 
place  them  directly  under  executive  control.7 

The  Civil  Service. — The  management  of  an  admin- 
istrative department  may  be  in  charge  of  a  board,  or  in 
a  single  head.  These  may  hold  office  for  life,  or  for  a 
long  or  short  term,  or  for  an  indefinite  term  during  good 
behavior  (quamdiu  se  bene  gesserint).  They  may  be  ap- 
pointed, or  elected  by  the  electorate,  either  directly  or 
indirectly  through  elected  representatives  of  the  people.' 
They  may  have  the  power  to  appoint  their  subordinates 
at  will,  or  these  may  be  appointed  in  accordance  with  defi- 
nite rules  and  regulations,  which  may  include  a  system  of 
competitive  tests  and  assignment  of  office  on  the  basis 
of  capacity  and  merit.  These  departments,  with  their 
numerous  officials  and  clerical  forces,  unitedly  make  up 
what  is  called  the  bureaucracy,  or  civil  service.  Narrow- 
ness and  inefficiency  in  its  management  and  life  tenure  in 
office  develop  a  bureaucracy  characterized  by  an  over- 
emphasis on  routine  and  details,  to  the  neglect  of  larger 
interests.8  Political  favoritism  in  appointments  has  also 
proved  a  fertile  source  of  inefficiency  and  corruption. 
The  problem  of  an  honest,  economic,  and  efficient  admin- 
istration of  government  is  one  of  the  hardest  problems 
now  before  political  theorists  and  statesmen. 

Officeholders. — There  are,  broadly  speaking,  two 
classes  of  officeholders:  I.  Those  who  have  discretionary 
powers  in  the  performance  of  their  executive,  adminis- 

T  See  the  author's  Growth  of  American  State  Constitutions, 
Chap.  XIII. 

8  There  is  an  amusing  story  current  to  the  effect  that  a  Bureau 
head  of  the  War  Department  at  Washington  once  complained,  "I 
had  my  Bureau  in  perfect  working  order,  with  everything  running 
smoothly,  when  along  came  the  "Spanish  War  and  smashed  up 
everything." 


204      THE  STATE  AND  GOVERNMENT 

trative,  legislative,  and  judicial  functions,  such  as  the 
heads  of  the  various  important  divisions  and  subdivisions 
of  government,  and  members  of  lawmaking  bodies. 

2.  Those  who  have  ministerial  powers  only,  perform- 
ing their  duties  under  definite  instruction,  such  as  a  cleri- 
cal or  police  force,  and  the  minor  officers  of  the  army 
and  navy.  The  same  person  may  have  discretionary 
powers  in  respect  to  those  below  him,  but  be  ministerial 
in  his  relations  with  his  superior  in  the  department. 

Besides  these,  there  are  many  persons  hired  by  the 
government  as  menials  or  laborers,  but  these,  not  being 
engaged  in  governmental  business,  are  not  properly 
classed  as  officials. 

Officeholders,  again,  may  be  classified  into  those  who 
serve  in  the  army  and  navy  with  their  related  branches 
and  are  subject  to  special  military  and  naval  rules  and 
regulations;  and  those  engaged  in  the  civil  service,  that 
is,  all  administrative  positions  other  than  those  in  the 
army  and  navy.  In  most  of  continental  Europe  these  are 
subject  to  a  special  system  of  administrative  law.9 

Officeholders  may  possess  their  offices  by  hereditary 
right  or  by  appointment  or  election.  An  hereditary  right 
to  an  office  is  based  on  the  theory  that  every  person  who 
has  large  economic  interests  at  stake  should  have  in  his 
hand  sufficient  political  power  to  enable  him  to  safeguard 
his  interests.  This  principle  had  its  rise  in  the  patriarchal 
period,  when  land  was  the  chief  form  of  wealth  and  its 
chief  defense  lay  in  the  military  strength  of  its  owner. 
Hence  the  rise  of  a  class  of  landed  nobility  claiming 
office  by  hereditary  right,  the  king  as  a  rule  being  the 
wealthiest  of  all.  As  other  forms  of  wealth  developed, 
its  possessors  sought  political  power  either  through  the 

*See  pages  216-220. 


ADMINISTRATIVE  ORGANIZATION  205 

purchase  of  landed  estates  or  by  allying  themselves  with 
political  leaders  who  could  protect  them  in  their  posses- 
sions. In  modern  times,  law,  backed  by  the  power  and 
authority  of  the  state,  seeks  to  secure  to  every  man  equal 
and  exact  justice.  Under  such  a  system  it  is  unnecessary 
that  the  wealthy  have  special  privileges  in  officeholding, 
and  hereditary  right,  therefore,  tends  to  fall  into  disuse. 
But  if  the  law  is  not  properly  enforced,  wealthy  classes 
invariably  seek,  even  by  corrupt  means  if  necessary,  to 
control  governmental  machinery  so  as  to  secure  their  in- 
terests and  perhaps  to  exploit  the  weaker  under  the  forms 
of  law.  Presumably  the  masses  would  do  the  same,  if 
they  had  the  opportunity,  judging  from  Bolshevism  in 
Russia.  If  equal  and  just  law  is  administered,  it  makes 
small  difference  whether  the  officeholder  be  rich  or  poor, 
or  hold  office  for  life  or  for  a  term  of  years.  He  is  but  a 
mouthpiece  of  the  national  will,  which  aims  to  secure  im- 
partial justice  to  all  its  citizens  alike. 

The  Right  of  Instruction. — Officials  elected  or  ap- 
pointed10 are  alike  in  that  each  represents,  not  his  own  in- 
terests, but  the  interests  of  the  public,  and  secondarily  the 
interests  of  the  body  that  elects  or  appoints  him.  Un- 
fortunately officials  too  often  consider  that  they  owe 
greater  obligation  to  the  political  party  that  elected  them 
than  to  the  public  whom  they  are  supposed  to  serve. 
Under  the  usual  theory  of  representation,  an  elected  rep- 
resentative is  not  legally  bound  to  obey  instructions  given 
him  by  his  constituency.  He  may  choose  to  obey  them 

M  The  distinction  between  these  two  words  is,  that  an  official 
appointed,  is  appointed  always  by  some  other  official  or  body  of 
officials.  An  official  elected  is  always  chosen  by  the  electorate  or 
by  some  elected  body,  representative  of  the  electorate.  A  mayor 
or  a  president,  for  instance,  appoints,  but  a  city  council  or  a 
legislature  elects. 


206  THE  STATE  AND  GOVERNMENT 

as  a  matter  of  expediency,  influenced  by  the  hope  of  re- 
election, but  should  he  act  otherwise,  he  cannot  legally  be 
called  to  acount  for  his  refusal  to  follow  instructions. 
Thus,  in  the  United  States,  a  member  of  an  electoral  col- 
lege may  be  instructed  to  vote  for  a  certain  candidate  for 
the  presidency,  and  he  is  under  a  moral  obligation  to  do 
so,  yet  if,  for  some  reason,  satisfactory  to  himself,  he 
should  vote  for  another  candidate,  his  vote  would  be 
legal  and  by  no  possibility  could  be  altered. 

In  the  earlier  half  of  our  national  history  the  contrary 
theory  was  often  argued,  and  the  legal  right  of  constitu- 
encies to  instruct  their  delegates  was  occasionally  ad- 
mitted, especially  in  the  Southern  States  where 
Rousseau's  teachings  had  great  weight.11  This  aspect 
survives  in  the  notion  that  delegates  to  political  conven- 
tions, if  instructed,  must  obey  instructions.  In  recent 
years  there  is  a  revival  of  the  "right  of  recall/'12  so  often 
discussed  in  our  Revolutionary  history,  whereby  a  con- 
stituency by  a  specified  vote  may  cut  short  the  term  of 
office  of  some  officer  or  representative  whose  actions  are 
not  meeting  with  popular  approval. 

Administrative  Districts. — When,  in  historical  de- 
velopment, the  simple  village  community  grows  through 
confederation  into  a  larger  unity,  the  larger  organization 
does  not  deprive  the  smaller  ones  of  their  administrative 
powers;  it  merely  assumes  the  general  functions  incident 
to  the  larger  interests  involved.  This,  of  course,  may  in- 
volve some  supervision  over  the  smaller  organizations. 

11  See  Index  under  Rousseau. 

"It  is  being  revived,  for  example,  in  connection  with  the  com- 
mission system  of  municipal  government  and  in  about  a  quarter  of 
the  forty-eight  States  of  the  Union.  These  provide  for  a  recall 
for  "every  elective  public  officer,"  but  four  omit  judicial  officers 
from  those  liable  to  recall.  See  the  author's  Growth  of  American 
State  Constitutions,  pp.  169-171,  233. 


ADMINISTRATIVE  ORGANIZATION  207 

If,  at  a  later  stage,  through  conquest  or  peaceable  con- 
federation, a  still  larger  unity  should  develop,  the  same 
statement  would  hold  true.  There  would  thus  be  (a)  a 
national  unity  exercising  general  national  powers,  (&) 
smaller  unities  exercising  general  local  powers,  and  (c) 
still  smaller  unities  exercising  petty  local  powers.  All 
states  that  have  developed  some  importance  will  have 
these  three  classes  of  administrative  bodies :  the  national, 
the  local,  and  the  intermediate.  The  names  most  com- 
monly applied  to  the  lowest  division  are  the  town,  or 
township,  and  the  village,  or  commune.  Within  this 
there  may  be  smaller  administrative  districts  for  pur- 
poses of  convenience  merely.  The  intermediate  organi- 
zation is  historically  known  as  the  province,  in  England 
and  the  United  States  of  America  as  the  county  or  shire, 
and  in  France  at  the  present  time  as  the  department. 
This  division  also  is  frequently  subdivided  into  smaller 
districts  for  convenience  in  administration,  in  which  case 
each  subdivision  will  contain  several  townships  or  com- 
munes.13 If  these  districts  become  economically  impor- 
tant through  commerce,  manufactures,  and  population, 
they  are  incorporated  as  municipalities,  or  cities  (bor- 
oughs in  Great  Britain),  and  form  a  grade  by  themselves. 
Townships  remain  as  subdivisions  or  wards  of  the  city. 
Subdivisions  of  many  sorts  are  made  for  purposes  of 
administration  in  such  matters  as  conscription,  education, 
charity,  sanitation,  policing,  and  elections. 

If  a  state  is  made  up  by  the  unification  of  several 
states,  these  former  states  become  important  administra- 
tive areas  intermediate  between  the  province  and  the 
national  area.  The  commonwealths  of  federative  gov- 
ernments are  such,  as,  for  instance,  the  commonwealths 
u  See,  for  instance,  the  French  artondissement  and  canton. 


208      THE  STATE  AND  GOVERNMENT 

of  the  United  States  of  America,  the  cantons  of  Switzer- 
land, and  the  states  of  the  German  republic.  Such,  also, 
were  the  counties  in  Saxon  England,  the  "hundreds" 
then  representing  the  intermediate  grade.  In  any  devel- 
oped state,  therefore,  one  may  expect  to  find  subordinate 
to  the  national  area,  townships  or  communes,  provinces 
or  counties,  and  cities.  If  the  state  is  federative,  the 
commonwealths  form  an  additional  grade.  Subdivisions 
of  these  several  grades  will  be  found  in  larger  or  smaller 
number  according  to  convenience  in  administration. 

Local  Autonomy  or  Home  Rule. — Naturally  and 
historically  these  various  districts  should  exercise  full 
local  powers,  subject  only  in  general  matters  to  the  larger 
area.  This  is  the  modern  theory  of  local  autonomy,  or 
home  rule,  now  under  discussion  in  American  cities,  and 
regularly  a  matter  of  debate  in  important  colonies  of 
great  empires.  As,  however,  states  have  developed  poli- 
cies of  centralization,  they  have  interpreted  their  general 
powers  more  broadly,  and  have  pressed  their  authority 
more  and  more  vigorously  on  subordinate  administrative 
areas.  This  has  usually  been  under  plea  of  military  ne- 
cessity or  of  needed  uniformity  or  of  general  welfare. 
As  the  strength  of  this  tendency  varies  with  conditions, 
the  degree  of  centralization  varies  in  each  particular  state 
according  to  the  dominant  theories  of  militarism,  uni- 
formity, and  general  welfare.  A  state  in  constant  fear 
of  attack,  like  France,  must  for  safety's  sake  be  strongly 
centralized,  whereas  Switzerland,  neutralized  by  agree- 
ment, can  afford  to  decentralize,  except  as  influenced  by 
notions  of  uniformity  or  general  welfare.  On  the  whole, 
three  grades  of  centralization  may  be  noted : 

I.  That  in  which  the  subordinate  areas  or  bodies  poli- 
tic are  clearly  regulated  and  supervised  directly  by  the 


ADMINISTRATIVE  ORGANIZATION  209 

national  administration  through  its  own  officials,  as  in 
France. 

2.  That  in  which  the  subordinate  areas  are  regulated 
and  supervised  indirectly  by  the  national  administration, 
as  in  England,  where  in  many  matters  a  uniform  system 
is  adopted,  but  the  administration  of  it  is  left  to  the  local 
administrative  bodies. 

3.  That   in  which  the  subordinate  areas   practically 
regulate  all  their  local  affairs  without  much  interference 
from  the  national  administration,  as  in  the  relation  of 
Great  Britain  to  its  autonomous  colonies,  and  in  the  re- 
lations of  commonwealths  in  the  United  States  of  Amer- 
ica to  their  subordinate  areas.14 

No  state  conforms  entirely  to  any  one  of  these  types; 
the  most  centralized  government  may  allow  large  local 
powers  in  some  matters,  and  the  most  decentralized  may 
employ  large  general  powers  in  such  affairs  as  war,  di- 
plomacy, and  taxation.  The  test  is  made  by  the  theoreti- 
cal principle  on  which  government  acts,  irrespective  of 
whether  at  any  particular  time  it  seems  expedient  to  use 
many  or  few  powers  of  regulation.  Just  how  much 
home  rule  should  be  left  vested  in  the  subordinate  divi- 
sions is  a  question  of  policy  largely  to  be  determined  by 
conditions.  There  must  be  taken  into  account  on  one 
side  the  general  intelligence  and  public  spirit  of  the  com- 
munities themselves,  and  on  the  other  the  necessity  for 
emphasis  on  broad  general  interests  as  against  localism 
and  incompetency.  No  theory  is,  in  itself,  always  and 
everywhere  true.  Wisdom,  in  rightly  interpreting  the 
conditions  of  the  times,  must  guide  in  settling  on  a  policy 
of  home  rule,  or  centralization. 

"For  a  study  of  American  local  government  with  a  comparative 
background  see  N.  G.  James,  Local  Government  in  the  United 
States. 


210      THE  STATE  AND  GOVERNMENT 

Japan's  Administrative  System. — As  an  illustration 
of  extreme  centralization,  yet  with  beneficial  results,  at- 
tention may  be  called  to  the  system  of  administration 
employed  by  Japan.  It  may  be  remembered  that  in  1867 
the  system  of  feudalism  under  the  Shogunate  yielded  to 
a  reorganized,  centralized  government  under  the  Em- 
peror. Lacking  experience  in  modern  governmental  prac- 
tices, Japan  long  wavered  in  seeking  to  decide  on  the 
models  after  which  it  should  reorganize  its  government. 
After  many  indecisive  experimentations,  in  1881  the 
Emperor  announced  that  a  constitution  would  be  pro- 
mulgated within  ten  years.  Count  Ito  at  the  head  of  a 
commission  was  charged  with  the  preparation  of  this  and 
did  so,  modeling  it  after  the  German  Constitution,  under 
the  influence  of  Bismarck.  The  Constitution  was  put 
into  effect  February  u,  1889  (henceforth  a  national  holi- 
day), and  has  proved  to  be  remarkably  effective,  due 
mainly  to  the  highly  centralized  system  of  administration 
developed.  This  was  necessary  since  the  general  igno- 
rance prevailing  in  those  days  in  respect  to  Western 
civilization  and  world  politics  made  it  expedient  to  con- 
centrate power  into  the  hands  of  the  comparatively  few 
who  did  understand  the  world  situation,  and  hence  could 
best  formulate  effective  policies.  The  great  leaders  of 
these  few  experts  in  time  became  known  as  the  Elder 
Statesmen,  and  are  reverenced  like  the  "Fathers  of  the 
Revolution/'  because  of  the  carefully  planned  system 
they  evolved. 

Two  factors  were  of  great  aid  to  them  in  their  task: 
(a)  the  fact  that  the  Emperor  was  in  general  estimation 
a  god  by  descent  and  gave  them  most  hearty  support 
throughout  his  long  reign  and  (b)  that  the  Japanese, 
being  naturally  militaristic,  yielded  readily  to  guidance 


ADMINISTRATIVE  ORGANIZATION  211 

and  leadership,  and  especially  devoted  themselves  assidu- 
ously to  preparation  and  training  in  army  or  navy,  thus 
insuring  victory  in  their  several  wars. 

The  task  before  the  leaders  was  to  direct  the  energies 
of  the  Japanese  into  modern  directions,  by  forced  proc- 
esses as  it  were,  since  they  could  not  wait  for  the  slow 
growth  of  democracy  to  accomplish  results.  Govern- 
mental power,  therefore,  was  concentrated  into  adminis- 
trative departments,  highly  centralized  and  largely  free 
from  Parliament,  since  the  Lower  House  has  little  con- 
trol over  finance  or  appropriations.  Deprived  for  the 
most  part  of  the  "power  over  the  purse"  the  Lower 
House  became  and  is  a  sort  of  debating  society,  with 
small  powers,  and  in  any  case  voices  only  the  propertied 
classes,  since  suffrage  is  restricted  by  a  taxpaying  quali- 
fication for  voters  of  three  yen  ($1.50)  paid  as  a  direct 
tax.15 

Since  governmental  power  with  few  restrictions  was 
concentrated  in  a  closely  centralized  bureaucracy,  this 
body  through  its  leaders  could  determine  policy  and  fur- 
nish the  finances  requisite  for  the  execution  of  the  policy 
determined  on.  As  a  result  of  this  concentration  of 
authority  the  government  was  able  to  establish  and  sub- 
sidize whatever  agencies  seemed  likely  to  be  of  use  for 
national  prosperity.  For  example,  a  thorough  system  of 
education  was  established  and  made  compulsory  in  its 
lower  grades.  In  its  higher  grades  specialization  begins 
and  capable  young  men  are  stimulated  to  study  through 
college  and  university  with  a  virtual  guaranty  that  suc- 
cessful candidates  will  find  careers  open  to  them  in  the 
great  industries,  in  the  professions,  or  in  governmental 

15  On  the  older  basis  of  a  ten-y^n  qualification,  down  to  1918,  the 
voting  population  was  about  3.3  per  cent  of  the  whole. 


212      THE  STATE  AND  GOVERNMENT 

service.  The  teaching  profession  is  dignified  and  the 
most  successful  graduates  from  the  universities  pass 
readily  into  the  first  grades  of  governmental  service, 
thus  insuring  to  the  bureaucracy  a  steady  stream  of 
young  men  of  the  highest  intelligence  and  technical 
knowledge  and  skill.  Upon  these  heavy  responsibility  is 
placed  and  tangible  results  are  expected.  Failure  on 
their  part  means  discharge,  disgrace,  and  probably 
suicide. 

Based  on  such  a  foundation  the  government  has  found 
no  difficulty  in  stimulating  through  its  various  depart- 
ments an  efficient  banking  system,  ship  building,  a  mer- 
chant marine,  scientific  agriculture  and  forestry,  many 
varieties  of  manufacturing  industries,  and  fishing  and 
mining. 

Meanwhile  it  has  fought  successful  wars  with  China 
and  Russia,  cooperated  with  the  Allies  in  the  Great  War, 
enlarged  its  possessions  by  the  inclusion  of  Korea,  and 
has  other  claims  along  the  eastern  coast  of  Asia  and  over 
the  former  German  islands  north  of  the  equator.  Ob- 
viously Japan  presents  many  object  lessons  of  the  effi- 
ciency of  a  highly  trained  centralized  bureaucracy  actu- 
ated by  patriotic  motives  and  through  it  has  reached  a 
place  among  the  great  powers,  probably  ranking  as  third 
in  order.  For  a  whole  generation  (about  thirty-five 
years)  the  bureaucracy  has  guided  the  destinies  of  Japan 
with  great  success.  Whether  the  pace  can  be  kept  up  for 
another  generation  remains  to  be  seen.  The  tide  of  de- 
mocracy is  rising  rapidly  in  Japan  and  democracies  are 
rarely  efficient.  Then,  too,  bureaucracies  unchecked  by 
public  opinion  tend  to  develop  red  tape  and  to  become 
corrupt.  A  militaristic  imperialistic  efficiency  also 
usually  fails  to  take  into  account  the  racial  psychology 


ADMINISTRATIVE  ORGANIZATION  213 

of  other  nations  and  may  readily  arouse  international 
jealousies  and  enmities.  At  this  particular  time  it  looks, 
for  instance,  as  though  Japan  has  permanently  estranged 
the  Chinese  and  has  not  a  real  friend  in  the  remaining 
world  of  international  states. 


CHAPTER  XIV 

THE   JUDICIAL  DEPARTMENT 

The  Judicial  Function. — The  chief  function  of  the 
judicial  department  is  to  interpret  the  law  and  to  apply 
its  penalties  and  remedies  in  all  cases  brought  before  the 
courts  for  their  decision.  This  power  is  fundamental  to 
the  successful  workings  of  government,  which  by  nature 
is  coercive  and  must  have  authority  to  enforce  by  penalty 
its  decisions.  Such  a  power  is  essentially  executive  and 
was  originally  wielded  by  the  elders  and  later  by  the 
chiefs  or  the  king.  In  modern  states  judicial  authority 
has  differentiated  into  two  great  branches,  one  exercised 
by  the  executive  department  as  formerly  and  the  other 
by  a  separate  department  devoted  to  judicial  functions 
only.  This  latter  department  is  concerned  chiefly  with 
alleged  infractions  of  the  law  by  private  persons  and  with 
disputes  between  private  persons  in  regard  to  property 
rights.  That  part  of  the  judicial  function  residing  in 
the  executive  department  is  concerned  mainly  with  the 
enforcement  of  discipline  in  the  army  and  navy,  or  in 
the  civil  service,  and  in  the  settlement  of  disputes  arising 
under  administrative  rules. 

Executive  Judicial  Power. — As  law  in  the  primitive 
state  was  simply  immemorial  custom,  binding  on  all  per- 
sons alike,  infractions  of  it  were  few  and  far  between. 
The  chief  business  of  the  state  in  those  times  was  war, 
and  the  judicial  function  of  the  state  probably  had  its 

214 


THE  JUDICIAL  DEPARTMENT  215 

origin  in  proceedings  against  those  who  failed  in  the 
customary  duties  and  obligations  of  war.  The  procedure 
in  such  cases  was  short  and  the  punishment  severe.  This 
original  judicial  power  of  the  state  survives  in  treason 
laws  and  in  the  jurisdiction  exercised  by  the  executive 
department  through  its  control  over  discipline  in  the  army 
and  navy.  This  power  is  not  exercised  arbitrarily  in 
modern  states,  but  in  accordance  with  constitutional  or 
statutory  provisions  supplemented  by  "rules  and  regu- 
lations." Under  this  power  courts-martial  may  be  au- 
thorized to  enforce  discipline  by  bringing  offenders  "to  a 
more  exemplary  and  speedy  punishment  than  the  usual 
forms  of  law  will  allow."  1 

Another  illustration  of  this  judicial  power  may  be  ob- 
served in  times  of  riot,  insurrection,  or  public  danger, 
when  the  authority  of  executive  officers  or  of  courts-mar- 
tial may  supersede  the  authority  of  the  ordinary  courts 
of  the  land  in  respect  to  cases  involving  the  peace  and 
safety  of  the  state.  The  exercise  of  this  power  is  care- 
fully safeguarded  in  modern  states  by  legal  provisions 
in  regard  to  the  time  and  manner  of  its  exercise,  and  by 
holding  responsible  for  the  proper  performance  of  their 
duties  those  who  wield  this  extraordinary  power. 

A  third  form  of  this  kind  of  judicial  function  is  seen 
in  the  arbitrary  power  exercised  by  courts  in  maintaining 
their  dignity  by  punishing  violations  of  judicial  orders. 
This  power  to  punish  arbitrarily  by  fine  or  imprisonment 
for  "contempt  of  court"  is  a  real  power  even  at  the  pres- 
ent day  as  seen  in  labor  troubles  in  the  United  States  of 
America  in  the  injunction  cases  affecting  Debs  (1895), 
Mitchell  and  Gompers  (1908),  and  Howat  (1919).  His- 
torically, of  course,  the  court  is  merely  a  department  of 

1  First  Mutiny  Act,  England,  1689. 


216      THE  STATE  AND  GOVERNMENT 

administration  under  the  king  and  punishes  for  contempt 
of  his  commands.  Lawmaking  bodies  in  a  similar  way 
exercise  such  judicial  powers  in  matters  affecting  their 
dignity,  privileges,  or  membership.  In  general  it  will  be 
observed  that  monarchies  contain  many  interesting  sur- 
vivals of  broad  judicial  powers  that  still  reside  in  king 
and  council.  Illustrations  could  be  multiplied,  but  the 
judicial  power  exercised  by  privy  council  under  the  Eng- 
lish Tudors,  or  by  the  present  house  of  lords,  the  descend- 
ant of  the  Saxon  witan  and  the  Norman  great  council, 
will  readily  suggest  the  application. 

Administrative  Courts. — An  extension  of  this  idea 
of  executive  judicial  power,  developed  and  maintained  by 
the  executive  so  as  to  strengthen  its  importance  as 
against  a  judicial  system  proper,  may  be  found  in  those 
states  (for  instance,  in  practically  all  of  the  European 
Continental  states)  that  have  a  separate  system  of 
courts,  known  as  administrative  courts,  for  trying  cases 
in  which  officers  of  the  civil  administration  are  charged 
with  criminal  or  illegal  acts  committed  in  connection  with 
the  discharge  of  their  official  functions.  The  idea  under- 
lying such  a  system  of  courts  is  that  civil  officers  in  the 
discretionary  performance  of  their  public  duties  may  not 
infrequently  have  occasion  to  violate  the  ordinary  law  of 
the  land.  In  such  case  they  should  not  be  tried  in  the  or- 
dinary courts,  but  by  their  superior  officers,  who  from 
their  understanding  of  the  situation  can  best  decide  as 
to  the  necessities  of  the  case.  This  theory  of  official 
responsibility  does  not  find  favor  in  English-speaking 
communities,  which  prefer  to  make  official  and  private 
citizens  alike  responsible  ultimately  to  the  same  law. 
The  practical  effect  of  an  administrative  system  of  courts 
is  (a)  to  develop  a  simpler  procedure  and  law  for  officials 


THE  JUDICIAL  DEPARTMENT  217 

in  respect  to  their  administrative  acts,  (&)  to  mingle  no- 
tions of  expediency  with  principles  of  abstract  justice 
and  (r)  to  develop  a  bureaucracy  of  special  privileges  in 
part  above  and  outside  of  the  ordinary  law  of  the  land. 

French  Administrative  Courts. — As  the  French 
system  of  administrative  courts  is  the  model  after  which 
other  Continental  states  have  patterned,  a  brief  state- 
ment of  its  history  and  importance  may  be  found  useful.2 

In  the  centuries  immediately  preceding  the  Revolution 
of  1789,  the  ordinary  judicial  bodies,  the  provincial  par- 
lements,  were  not  unified  into  a  great  national  system  as 
were  the  courts  in  England,  while  on  the  other  hand  the 
national  administration  was  rapidly  centralizing  its  pow- 
ers and  adding  to  them.  Naturally,  therefore,  the  ad- 
ministration vigorously  resisted  attempts  on  the  part  of 
the  courts  to  exercise  jurisdiction  over  the  acts  of  its 
officials,  and  began  the  process  of  organizing  special 
courts  of  its  own.  In  the  famous  Declaration  of  Rights 
of  1789,  the  theory  of  Montesquieu  in  respect  to  the 
separation  of  powers  was  expressly  included  and  empha- 
sized; but  in  the  following  year  the  Assembly  by  law 
logically  interpreted  this  to  mean,  in  the  light  of  French 
history,  that  the  courts  should  never  be  allowed  to  inter- 
fere with  acts  of  administrative  officials  done  in  the  per- 
formance of  their  duties.  Still,  in  order  to  safeguard 
citizens  in  their  rights,  provisions  were  carefully  made 
for  appeals  from  subordinate  to  higher  administrative 
authorities.  Since  that  time  the  place  and  importance  of 
court,  law,  and  procedure  have  been  carefully  worked  out 

'For  fuller  explanations  of  the  French  system  and  numerous 
references,  see  Goodnow,  Comparative  Administrative  Law,  vol.  ii, 
Chap.  VI;  and  Lowell,  Governments  and  Parties  in  Continental 
Europe,  vol.  i,  pp.  47-68.  These  works  also  explain  the  administra- 
tive systems  of  certain  other  countries. 


2i8      THE  STATE  AND  GOVERNMENT 

into  the  present  admirable  system  of  an  administrative 
judiciary. 

As  at  present  organized,  the  center  of  the  entire  sys- 
tem, the  court  of  last  resort,  is  the  judicial  section  of  the 
Council  of  State,  which  body  is  composed  of  the  minis- 
terial heads  of  the  great  departments  of  administration 
and  of  numerous  permanent  administrative  officials  of 
high  grade.  Below  the  judicial  section  of  this  Council 
are  the  Prefectural  Councils,  each  made  up  of  the  Pre- 
fect of  the  Department  as  nominal  president  and  of  coun- 
cilors appointed  and  removed  by  the  President  of  the 
Republic.  Prefects,  and  in  the  communes  the  mayors, 
serve  as  judges  in  certain  petty  cases.  Within  the  de- 
partment there  are  other  specialized  courts,  such  as  the 
superior  council  of  public  instruction,  coordinate  with 
the  Prefectural  Council  but  lacking  its  importance. 
These  also  are,  of  course,  subordinated  to  the  Council 
of  State. 

Administrative  Law. — In  France  a  sharp  distinc- 
tion is  made  between  public  and  private  law.  As  ad- 
ministrative officials  in  the  performance  of  their  official 
duties  administer  public  law  and  apply  it  to  cases  arising 
in  national  administration,  they  under  French  theory 
should  be  free  from  the  jurisdiction  of  the  ordinary 
courts,  which  adjudicate  only  on  the  rights  and  duties 
of  private  individuals.3  Officials  are,  therefore,  in  fact 
placed  under  authority  of  the  administrative  courts, 
which  use  a  procedure  and  law  different  from  those  of 
the  ordinary  system.  These  courts  in  rendering  their 
decisions  rely  chiefly  on  precedent,  based  on  the  interpre- 
tation of  statutory  authority  or  ordinances  issued  by  the 

8  In  France  criminal  law,  which  according  to  English  theory  is 
public  law,  is  for  the  most  part  adjudicated  by  the  ordinary  courts. 


THE  JUDICIAL  DEPARTMENT  219 

administration.  As  public  policy  must  be  taken  into  ac- 
count as  well  as  principles  of  abstract  justice,  the  courts 
naturally  use  a  loose  interpretation,  a  flexible  procedure 
and  notions  of  expediency.  This  is  all  the  more  possible 
since  they  are  not  really  bound  to  follow  the  law  too 
closely,  for  the  reason  that  the  final  decision  on  appeal 
lies  in  the  Council  of  State,  itself  an  administrative  body, 
and  not  subject  to  the  general  courts  using  the  private 
law  of  the  land.  Still,  as  there  is  a  large  freedom  in  ap- 
peals, an  ordinary  citizen  will,  as  a  rule,  obtain  a  just 
decision  at  small  expense  and  with  slight  delay  in  the 
administrative  courts.  He  may,  however,  not  secure  ex- 
act justice,  or  even  justice  at  all,  if  the  case  assumes  a 
political  aspect  and  governmental  policy  seems  to  de- 
mand a  partisan  decision. 

American  Administrative  Courts. — This  system  of 
law  is,  of  course,  at  variance  with  the  English-American 
theory,  which  subjects  every  governmental  official  and 
his  acts  to  the  final  jurisdiction  of  the  general  courts  of 
the  land.  Yet  there  are  approximations  to  the  French 
system  in,  for  example,  the  series  of  military  and  navaJ 
courts  administering  in  separate  courts  a  special  law  and 
procedure.  In  some  of  the  departments  of  administra- 
tion also,  such  as,  for  example,  the  Treasury  Depart- 
ment in  the  United  States,  there  are  semi-judicial  bodies 
to  render  decisions  on  disputed  interpretations  of  law 
and  ordinance,  such  as,  for  instance,  the  proper  charge 
in  customs  duties.  The  rise  of  administrative  commis- 
sions, national  and  local,  such  as  commissions  in  regu- 
lation of  interstate  commerce  or  of  federal  trade  or  of 
quasi-public  corporations  holding  franchises,  authorized 
to  render  judicial  decisions  on  matters  intrusted  to  them, 
is  another  illustration  of  the  same  development.  Yet 


220      THE  STATE  AND  GOVERNMENT 

though  these  are  differentiated,  and  their  decisions  are 
"due  process  of  law"  as  truly  as  are  the  judicial  decisions 
of  the  usual  courts,  they  are  not  separated  and  given  co- 
ordinate jurisdiction.  They  are  subject  to  the  law  of 
the  land,  their  decisions  are  supposed  to  harmonize  with 
statutory  laws  and  with  the  constitution,  and  may  ulti- 
mately be  brought  for  final  review  before  the  general 
courts  of  law.4 

An  illustration  of  judicial  power  exercised  by  a  law- 
making  body  is  seen  in  the  development  of  the  impeach- 
ment power.  When  the  English  Parliament  in  its  earlier 
years  was  seeking  to  make  the  King's  Ministers  respon- 
sible to  it,  an  effective  weapon  was  found  in  the  bill  of 
attainder.  This  bill  simply  named  the  offender,  declared 
him  guilty  of  high  crimes,  and  ordered  his  execution.  It 
was  an  arbitrary  method  of  removing  an  obnoxious  Min- 
ister without  form  of  trial  and  was  certainly  effectual. 
At  a  later  stage^  as  a  concession  to  popular  prejudice  in 
favor  of  a  trial,  an  obnoxious  Minister  would  be  for- 
mally charged  by  one  House  with  crime,  tried  by  the 
other,  and  declared  guilty  as  a  matter  of  course.  This 
method  also  was  effective  but  unjust.  By  the  time  public 
sentiment  had  risen  to  a  height  where  it  demanded  a  fair 
trial  on  impeachment,  Ministers  had  been  made  respon- 
sible through  elections  and  the  reform  of  the  parliament- 
ary system.  Under  such  conditions  impeachment  has 
become  practically  unnecessary.  In  the  United  States  of 
America  bills  of  attainder  are  forbidden  by  the  Consti- 
tution and  though  impeachment  is  authorized,  yet  such 

4  See  T.  R.  Powell,  "Conclusiveness  of  Administrative  Deter- 
minations in  the  Federal  Government,"  American  Political  Science 
Review,  August,  1907,  pp.  583-607;  and  for  a  more  complete  dis- 
cussion see,  Kimball,  National  Government  of  the  United  States, 
pp.  232-241. 


THE  JUDICIAL  DEPARTMENT  221 

a  method  of  trial  is  so  tedious,  cumbersome,  and  barren 
of  results  that  it  has  almost  become  obsolete.5  Public 
opinion,  the  courts,  elections,  and  compulsory  resigna- 
tion from  office  or  the  recall,  furnish  the  usual  methods 
whereby  public  officials  are  made  responsible  in  the  per- 
formance of  their  duties. 

Development  of  the  Judicial  Department. — These 
historic  judicial  powers  residing  in  the  executive,  and  in 
the  legislative  as  an  outgrowth  from  the  executive,  rep- 
resent the  original  judicial  powers  residing  in  govern- 
ment. In  those  times  all  other  infractions  of  custom  and 
disputes  of  all  kinds  were  settled  by  private  vengeance  or 
compromise.  As  this  system  of  vengeance  passed  under 
the  jurisdiction  of  the  state,  the  executive  exercised  this 
new  judicial  power  also.  But  as  the  burden  of  adminis- 
tration grew  with  increasing  jurisdiction,  it  became  neces- 
sary to  separate  this  judicial  business  from  the  ordinary 
business  of  the  executive  and  to  delegate  it  to  a  separate 
set  of  officials,  who  devoted  themselves  to  the  knowledge 
of  the  law  of  the  land  and  the  principles  of  judicial  ad- 
ministration. This  separation,  however,  was  for  a  long 
time  largely  nominal.  Though  the  distinction  in  re- 
gard to  the  kind  of  function  was  early  established,  the 
development  of  a  distinct  set  of  officials  devoting  them- 
selves to  judicial  business  came  much  later.  The  same 
officials  administered  executive  business  as  assistants  of 
the  king,  sat  in  the  council  and  advised  him  in  matters  of 
national  policy,  and,  in  case  of  dispute,  declared  what  was 
in  their  opinion  the  law  of  the  land.  They  would  then 
as  judges  sit  on  the  king's  judgment  seat,  decide  cases, 

0  See  article  by  D.  Y.  Thomas,  "The  Law  of  Impeachment,"  Amer- 
ican Political  Science  Review,  May,  1908.  The  process  of  seeking 
to  make  a  ministry  responsible  tb  a  parliament,  or  to  its  lower 
house,  may  be  illustrated  by  present  agitations  in  Japan. 


222      THE  STATE  AND  GOVERNMENT 

and  punish  violations  of  the  law.  Such  a  system,  how- 
ever, best  suits  small  states  of  comparatively  simple 
administration.  As  civilization  becomes  complex  and  as 
states  increase  in  population  and  wealth,  thereby  multi- 
plying personal  and  property  rights,  a  further  differentia- 
tion becomes  inevitable.  Judicial  functions  pass  into  the 
control  of  a  specialized  class,  who  by  practice  and  train- 
ing become  expert  in  the  law.6 

The  next  development  results  from  the  rise  of  democ- 
racy. Judicial  jurisdiction  practically  covers  the  entire 
population.  Any  person  may  at  some  time  or  other  be 
charged  with  a  violation  of  law  or  be  concerned  in  the 
settlement  of  property  rights.  All,  consequently,  become 
interested  in  having  the  courts  decide  justly  and  honestly 
cases  brought  before  them.  Venal  judges  and  corrupt 
decisions  have  always  been  denounced,  and  even-handed 
justice  for  all  men  sought  as  the  ideal.  For  such  rea- 
sons a  developing  democracy  intuitively  seeks  to  control 
the  courts  so  as  to  insure  greater  justice.  As  it  gains 
power  and  intelligence  it  becomes  able  to  control  more 
fully  the  organization  of  the  judicial  system,  the  appoint- 
ments to  office  and  the  quality  of  the  law,  and  demands 
the  use  of  a  jury7  of  their  peers  (pares)  for  all  as  a 
safeguard  against  judicial  tyranny,  and  the  removal  one 
after  the  other  of  the  special  privileges  of  favored  classes, 

"For  early  development  of  the  English  judicial  system  see 
Stubbs,  Constitutional  History  of  England,  vol.  i,  Chaps.  XI-XIII; 
or  for  a  brief  statement  of  development  to  1873  see  Inderwick, 
The  King's  Peace. 

1  See  Lesser,  History  of  the  Development  of  the  fury  System. 
See  also  C.  H.  Haskins,  "The  Early  Norman  Jury,"  American  His- 
torical Review,  vol.  viii,  p.  4;  W.  B.  Scaife,  "Some  European  Modifi- 
cations of  the  Jury  System,"  American  Historical  Association, 
1894,  pp.  125-140;  B.  E.  Howard,  "Trial  by  Jury  in  Germany," 
Political  Science  Quarterly,  vol.  xix,  p.  650 ;  Matias  Romero,  Mexico 
and  the  United  States,  pp.  401-428,  article  on  "The  Anglo-Saxon 
and  Roman  Systems  of  Criminal  Jurisprudence." 


THE  JUDICIAL  DEPARTMENT  223 

so  as  to  make  all  men  equal  in  the  eyes  of  the  law  (pares 
inter  pares).  Naturally  enough,  kings  stoutly  resisted 
this  developing  independence  of  the  judiciary,  but  in 
democratic  communities  they  resisted  in  vain.  In  such 
states  we  find  a  judiciary  and  judicial  department  to 
all  intents  and  purposes  free  from  the  domination  of  the 
executive,  administering  a  law  approved  by  representa- 
tives of  the  people,  and  rendering  decisions  with  impar- 
tial purpose  and  theoretically  without  distinction  of 
persons.  In  monarchies  the  king  may  still  by  theory  be 
looked  on  as  the  head  of  the  judicial  system,  but  his 
power  is  nominal  and  is  exercised  chiefly  by  tempering 
judicial  punishments  with  mercy  through  the  exercise 
of  the  pardoning  power,  which  is  still  held  as  an  execu- 
tive prerogative. 

Privileged  Classes. — The  modern  theory  of  law  is 
strongly  democratic  in  that  the  state  aims  to  treat  every 
man  alike  before  the  law.  Ancient  systems  were  founded 
on  far  different  principles.  Even  in  primitive  times, 
when  a  rude  democracy  characterized  the  horde,  the  eld- 
ers had  special  privileges,  and  women  and  children  were 
too  often  considered  as  having  no  rights  that  a  man  was 
bound  to  respect.  The  caste  system  of  India  illustrates 
the  extreme  development  of  special  privileges  according 
to  social  grade.  The  people  are  carefully  divided  into 
castes,  and  legal  rights  are  based  in  accordance  with  the 
quality  of  the  caste.  Similar  distinctions  existed  and  do 
yet  exist  in  autocratic  or  aristocratic  monarchies.  Spe- 
cial privileges  were  held  by  the  nobility  as  the  military- 
governing  class,  and  by  the  clergy.  Below  these  were 
freemen,  freedmen,  and  aliens,  with  rights  as  against  one 
another  but  with  small  rights  as  against  the  nobility.  At 
the  bottom  of  the  scale  were  slaves,  this  class  of  the 


224  THE  STATE  AND  GOVERNMENT 

population  having  almost  no  status  or  rights  in  the  eyes 
of  the  law. 

Equality  before  the  law  under  such  a  system  was  im- 
possible. Crimes  might  be  committed  with  impunity  by 
members  of  the  higher  classes  that  would  bring  condem- 
nation and  severe  punishment  if  committed  by  members 
of  the  lower  classes.  The  testimony  of  the  one  far  out- 
weighed the  testimony  of  the  other.  This  brought  about 
conflicting  ethical  standards  and  degradation  of  morals. 
As  the  influence  of  the  common  people  developed,  they 
fought  vigorously  for  equality  of  rights  for  all  freemen, 
and  as  slavery  disappeared  that  meant  for  all  men. 
Slowly  the  plebeians  or  commoners  won  rights  and  de- 
prived the  higher  classes  of  special  privileges,  until  with 
the  full  tide  of  democracy  in  the  nineteenth  century  the 
virtual  legal  equality  of  man  has  been  accepted  by  many 
progressive  states.8  There  are  still  class  distinctions 
based  on  social  rank,  wealth,  and  birth,  but  these  are 
rapidly  disappearing  in  judicial  matters.  As  a  matter  of 
practice,  even  in  democracies,  courts  make  real  distinc- 
tions almost  unconsciously  between  the  wealthy  and  the 
poor,  between  social  leaders  and  social  inferiors,  between 
persons  of  respectability  and  responsibility  and  their  op- 
posites.  All  this  is  natural  enough  under  the  circum- 
stances of  modern  life;  but  the  democratic  movement  is 
slowly  removing  in  modern  states  all  legal  distinctions 
between  man  and  man,  save  those  based  on  character  and 
social  utility. 

Systems  of  Courts. — The  judicial  system  of  any 
modern  state  is  complex  and  confusing  to  the  layman, 

"Cromwell  in  one  of  his  speeches  declared  that  "every  single 
man  is  judge  of  just  and  right  as  to  the  good  and  ill  of  a  kingdom." 
It  is  the  ancient  teaching  of  Protagoras,  "man  is  the  measure  of 
all  things  " 


THE  JUDICIAL  DEPARTMENT  225 

yet  there  are  certain  natural  lines  of  development  easy 
to  follow  that  readily  suggest  the  clew  for  any  given 
system.  In  criminal  matters  there  will  regularly  be  three 
grades  of  courts.  In  the  first,  or  lowest,  grade  there  will 
be  found  established  in  every  small  district  of  sufficient 
population  a  court  whose  jurisdiction  is  limited  to  the 
summary  disposal  of  petty  crimes  or  misdemeanors  or  to 
the  commitment  of  the  accused  person  to  the  court  of 
next  higher  grade.  This  higher  court  will  have  juris- 
diction over  cases  involving  serious  crimes  and  severe 
punishment.  The  third  and  highest  court  may  be  au- 
thorized to  try  special  forms  of  important  crime  and  will 
hear  appeals  from  the  lower  courts.  When  a  final  de- 
cision is  rendered,  the  only  recourse  left  to  the  convicted 
criminal  is  a  petition  to  the  pardoning  power,  which  may, 
from  the  standpoint  of  mercy,  modify  to  some  extent  the 
amount  of  penalty  inflicted  by  the  courts.  Kings  for- 
merly claimed  the  right  to  suspend  or  waive  the  applica- 
tion of  the  law  in  the  case  of  particular  persons  charged 
with  crime,  but  such  powers  are  not  consistent  with  a 
theory  of  equal  justice.  In  civil  cases  a  threefold  classi- 
fication is  also  common.  There  is  a  local  court  for  petty 
cases,  a  court  for  disputes  involving  more  important 
property  rights  and  a  supreme  court  for  specified  classes 
of  important  cases  and  for  appeals. 

Equity  Courts. — In  England  inequitable  decisions 
rendered  by  the  common  law  courts,  due  to  the  defects 
or  omissions  of  the  common  law,  formerly  might  be  ap- 
pealed to  the  king  as  the  fountain  of  justice,  who  would 
personally  remedy  the  defects  of  the  law  by  a  special 
decision,  or  might  delegate  the  power  of  investigation  to 
a  special  official  or  body  of  officials,  who  thereby  became 
a  court.  In  this  way  was  developed  in  England  the  Court 


226      THE  STATE  AND  GOVERNMENT 

of  the  Lord  Chancellor  and  the  system  of  equity  law, 
having  an  especial  body  of  principles  and  rules  of  pro- 
cedure and  a  jurisdiction  peculiar  to  itself.9  In  modern 
times  an  appeal  for  remedy  in  the  form  of  a  petition  may 
be  sent  to  the  lawmaking  body  which,  as  the  maker  of 
law,  may  correct  the  injustice  of  judicial  decisions  in  in- 
dividual cases,  unless  restrained  by  constitutional  pro- 
hibitions. 

The  best  illustration  of  the  process  of  introducing 
equity  into  custom  can  be  obtained  from  a  study  of  the 
development  of  Roman  law.  The  harsh  and  crude  cus- 
toms of  the  early  law  as  codified  in  the  XII  Tables  were 
slowly  modified  by  equitable  principles  introduced  by 
praetor,  commentator,  and  emperor,  until  after  a  thou- 
sand years  of  constant  modification  (450  B.C. — Justin- 
ian's Codification,  529-539  A.D.)  the  civil  law  of  Rome 
stood  forth  as  probably  the  most  valuable  contribution 
of  Roman  civilization  to  its  modern  successors  in  western 
Asia  and  Europe.10 

Specialized  Jurisdiction. — The  comparatively  sim- 
ple judicial  organization  outlined  above  may  become 
more  complex  by  the  multiplication  of  administrative 
functions.  Great  masses  of  specialized  business  may  be 
set  apart  and  handled  by  special  systems  of  courts  pat- 
terned in  general  after  the  national  system.  If,  for  ex- 
ample, church  and  state  be  united,  there  may  be  a  special 
series  of  ecclesiastical  courts  to  consider  cases  involving 
ecclesiastical  law  and  the  clergy.  Foreign  commerce  in- 

'  In  1873  these  two  systems  of  courts,  by  the  Judicature  Act, 
were  combined  into  one  system;  but  see  Inderwick,  The  King's 
Peace,  pp.  222-232. 

10  For  brief  volume  see  Morey,  Outlines  of  Roman  Law,  revised 
edition.  In  the  Bibliography  see  also  Section  III  and  note  works 
under  names  Sherman,  Sohm. 


THE  JUDICIAL  DEPARTMENT  227 

volves  a  system  of  admiralty  courts  and  of  consular 
courts,  to  exercise  jurisdiction  over  cases  arising  on  the 
seas  or  in  foreign  countries.  There  may  be  a  special 
series  of  courts  for  the  regulation  of  family  rights  as  in 
courts  of  probate  and  of  divorce,  or  domestic  relations 
courts,  or  courts  for  the  separate  trial  of  juveniles.  Gen- 
erally speaking,  the  development  of  a  specialized  line  of 
judicial  jurisdiction  tends  to  result  in  the  formation  of 
a  special  court  or  series  of  courts  for  the  settlement  of 
such  cases,  or  if  not,  then  the  grade  of  court  that  nat- 
urally would  have  jurisdiction  over  such  business  may  sit 
in  several  divisions,  and  one  of  these  given  jurisdiction 
over  a  particular  kind  of  case. 

Again,  complexity  in  organization  may  be  increased 
by  the  multiplication  of  administrative  areas  beyond  the 
ordinary  areas  of  township,  country,  and  nation.  In 
this  event  the  jurisdiction  of  the  first  and  second  grades 
of  courts  will  probably  be  subdivided  for  the  sake  of 
convenience  so  as  to  suit  the  needs  of  the  additional  areas. 
Or  the  development  of  a  federation  with  its  dual  form 
of  government  will  duplicate  the  judicial  system  of  the 
state  as  a  whole.  Or,  in  addition  to  the  ordinary  national 
systems  of  courts,  there  may  be  a  territorial  system,  a 
colonial  system,  or  the  system  of  a  former  state  now  sub- 
ordinate. In  such  instances  each  system  should  be 
studied  by  itself  and  then  the  connecting  links  that  bind 
together  the  several  systems  into  one  common  judicial 
system. 

Administrative  Aspect  of  the  Judicial  Department. 
— In  addition  to  the  several  series  of  courts  for  the  trial 
and  settlement  of  cases,  there  is  a  complicated  adminis- 
trative mechanism  to  supplement  the  work  of  the  courts. 
In  order  to  bring  cases  properly  before  the  courts  there 


228      THE  STATE  AND  GOVERNMENT 

is  a  large  body  of  persons  acting  as  police  officers,  or 
constables,  to  aid  in  carrying  out  its  functions.  As  the 
state  now  prosecutes  in  criminal  cases,  there  is  a  corps 
of  prosecuting  lawyers  in  the  employment  of  the  state, 
aided  in  their  initial  work  in  English-speaking  countries 
by  the  grand  jury.  Cases  may  be  settled  directly  by  a 
judge  or  a  bench  of  judges,  or  a  petit  jury  may  be  used 
to  aid  in  the  decision.  Punishment  in  ancient  states  was 
administered  on  the  spot,  but  in  modern  times  long  de- 
lays and  imprisonment  often  follow  the  verdict.  This  in- 
volves a  complex  system  of  prison  administration  and 
places  of  detention,  'the  entire  procedure  of  judicial 
administration,  from  the  formal  charge  and  arrest  to 
final  conviction  and  punishment,  is  carefully  worked  out 
in  modern  judicial  systems,  and  every  effort  made  to 
give  the  accused  a  fair  and  speedy  trial,  with  every  pos- 
sible opportunity  to  make  his  defense  and  if  possible  to 
prove  his  innocence.  So  detailed  have  these  precautions 
become  that  justice  is  often  thwarted  by  overemphasis 
on  safeguards,  resulting  too  frequently  in  the  acquittal 
of  guilty  persons,  thus  creating  contempt  of  law  and  mob 
violence.  In  democracies,  a  speedy  procedure,  impar- 
tially and  rigidly  administered,  and  the  surety  of  punish- 
ment in  case  of  guilt  are  the  safest  means  of  securing 
justice  and  respect  for  law. 

Legal  Penalties.11 — In  criminal  matters,  the  essence 
of  judicial  decision  is  the  infliction  of  a  proper  penalty 
for  violation  of  law.  As  the  early  jurisdiction  of  the 
state  lay  chiefly  over  military  offenses,  other  offenses 
were  visited  with  penalty  by  the  social  agencies  of  the 
time.  Many  of  these  still  survive,  but  with  considerably 
modified  powers.  A  church,  a  school,  or  a  social  organi- 
u  See  pages  77-83. 


THE  JUDICIAL  DEPARTMENT  229 

zation  may  discipline  or  punish  its  members,  parents  may 
within  reason  punish  their  minor  children,  public  opinion 
may  ostracize  or  otherwise  punish  offenders  of  social 
decorum,  and  individuals  occasionally  undertake  to  in- 
flict punishment  in  return  for  private  wrongs.  By  pres- 
ent theory  the  entire  power  of  punishment  inheres  in  the 
state  as  the  keeper  of  the  peace,  though  in  deference  to 
long-standing  custom  it  may  permit  the  power  of  punish- 
ment to  such  agencies  as  those  above  mentioned. 

The  Four  Stages  of  Punishments. — The  infliction 
of  penalty  has  passed  through  several  well-defined  stages, 
one  or  several  of  which  can  be  traced  in  the  history  of 
each  of  the  existing  civilizations.  Many  curious  sur- 
vivals of  ancient  stages  of  punishment  may  still  be  found 
even  in  the  most  highly  developed  civilization. 

1.  The  first  period  is  that  of  revenge.     Penalty  in  all 
its  forms  was  savage  and  cruel.    Man's  nervous  system 
was  in  primitive  times  less  highly  organized  and  endured 
pain  more  easily ;  the  mental  suffering  through  the  imagi- 
native anticipation  of  pain  was  lacking ;  human  sympathy 
was  a  rare  quality  and  belief  in  the  sacredness  of  human 
life  hardly  existed.    Punishment  was  ruthless,  often  out 
of  all  proportion  to  the  crime,  and  frequently  involved 
the  innocent  with  the  guilty,  under  the  ancient  theory  of 
collective  responsibility  either  of  family,  clan,  or  fra- 
ternity. 

2.  As  notions  of  justice  developed  in  men's  minds,  the 
desire  for  revenge  became  modified  into  the  principle  of 
retaliation.     Every  offense  was  to  be  atoned  for  by  a 
similar  punishment.     It  was  the  period  of  lex  talionis, 
an  eye  for  an  eye,  a  tooth  for  a  tooth,  no  more,  no  less.12 
This  system  also  was  cruel,  but  yet  in  its  attempt  to  se- 

"See  Exodus  XXI,  23-25. 


230      THE  STATE  AND  GOVERNMENT 

cure  justice  it  was  an  improvement  over  the  vindictive 
system  of  the  earlier  stage. 

3.  With  the  rise  of  personal  property  there  came  a 
strong  tendency  to  atone  by  the  payment  of  a  fine  for  all 
but  the  worst  crimes,  blood  penalty  being  exacted  only 
from  the  vicious  criminals  or  from  those  who  were  un- 
able to  pay  fines.     Under  this  system  there  was  a  care- 
fully graded  list  of  offenses,  each  valued  at  a  particular 
fine,  varying  in  amount  with  the  social  rank  of  the  in- 
jured person.    The  fine  in  early  times  was  paid  partly  to 
the  injured  and  partly  to  the  state.     Confiscation  of 
property  is  simply  a  variation  of  this  form  of  punish- 
ment.   With  the  development  of  slavery,  punishment  for 
crime  might,  in  default  of  the  payment  of  the  fine,  result 
in  the  sale  of  the  criminal  and  perhaps  of  his  family  also 
into  slavery  for  a  term  of  years  or  for  life.    As  slavery 
disappeared,  this  form  of  punishment  survived  in  sen- 
tences that  condemned  men  to  labor  in  mines  or  on  gov- 
ernmental works,  to  serve  in  the  army  or  navy,  or  to  labor 
as    servants    to    private    citizens    who    employed    this 
convict  labor  on  plantations,   in  mines,   or  in  various 
industries. 

4.  Another  stage  of  punishment  developed  when  the 
courts  undertook  to  deter  men  from  crime  by  the  inflic- 
tion of  cruel  punishments.    This  was  effected  by  impris- 
onment in  noisome  dungeons,   by  burning,  mutilation, 
whipping,  branding,  and  torture  developed  to  its  highest 
pitch  by  human  ingenuity.     Nothing  in  these  days  can 
be  said  in  justification  of  such  a  theory.     Experience 
shows  that  severity  of  punishment  does  not  deter  men 
from  committing  crime.     The  infliction  of  it  in  public 
even  tends  to  multiply  crimes  owing  to  the  fascination 
involved  in  such  awful  notoriety.    Judges  and  jury  would 


THE  JUDICIAL  DEPARTMENT  231 

hesitate  in  modern  times  to  inflict  such  punishments  and 
they  are  regularly  forbidden  by  law.  Nevertheless, 
they  are  still  inflicted  under  lynch  law  at  times  when 
men  are  overcome  by  violent  passions  and  vindictive 
emotions. 

Torture  and  the  Ordeal. — In  mediaeval  Europe,  as 
well  as  throughout  the  Orient,  a  belief  in  the  efficacy  of 
torture  resulted  in  its  use  in  the  case  of  persons  strongly 
suspected  of  crime,  against  whom,  however,  there  was 
insufficient  evidence  to  convict,  or  whose  evidence  it  was 
thought  might  inculpate  others.  These  persons  were  put 
to  the  torture  on  the  theory  that  persons  suffering  bodily 
anguish  will  tell  the  truth.13  The  fact  is,  that  as  a  rule 
they  will  tell  anything  their  torturers  wish  them  to  con- 
fess. The  use  of  torture  was  strengthened  by  the  belief 
that,  if  only  guilty  persons  could  be  brought  to  confess 
the  truth,  it  would  help  in  the  salvation  of  their  souls — 
a  theological  teaching  that  resulted  in  the  damnation  of 
more  souls  than  it  saved.  A  peculiar  form  of  trial  fol- 
lowed by  punishment  developed  in  early  Europe  and  in 
many  other  parts  of  the  world  as  the  result  of  religious 
ideas.  When  men  desired  to  do  justice  and  yet  realized 
how  imperfect  judicial  machinery  was  in  the  detection  of 
crime,  it  occurred  to  them  that  the  guilt  or  innocence  of 
the  accused  might  safely  be  left  with  God.14  In  conse- 
quence there  developed  a  system  of  ordeals,  oaths,  and 
judicial  combats,  the  outcome  of  which  determined  the 
punishment  or  acquittal  of  the  accused.  On  the  face  of 
it  such  a  system  seems  puerile,  and  it  is;  yet  it  had  its 
utility  in  a  credulous  age  where  all  men  really  believed 

"A  modern  but  illegal  form  of  it  is  sometimes  practiced  in  our 
detention  prisons  and  is  known  as  the  "infliction  of  the  third 
degree." 

14  See  Lea,  Superstition  and  Force. 


232      THE  STATE  AND  GOVERNMENT 

that  God  would  in  every  trial  strengthen  and  protect  the 
innocent  and  weaken  the  guilty.  It  failed  when  men  lost 
faith  in  God's  intervention  in  such  matters,  and  devised 
ways  and  means  of  evading  the  chances  of  failure  by 
bribery  and  trickery. 

Modern  Penal  Systems. — The  penal  systems  of  the 
nineteenth  century  present  a  complex  of  many  former 
stages.  Hanging  for  murder  is  a  form  of  lex  talionis. 
Hanging  for  other  crimes,  and  solitary  confinement  aim 
to  deter  the  commitment  of  such  crimes.  The  system  of 
fines  carefully  graded  to  fit  each  offense  is  still  in  vogue 
but  reserved  for  minor  crimes.  More  serious  offenses 
are  usually  punished  by  imprisonment,  not  so  much  to 
deter  others  from  crime  as  to  segregate  criminals  from 
social  life.  Nor  are  prisons  as  a  rule  horrible  dungeons 
as  formerly;  they  often  furnish  far  better  accommoda- 
tions than  those  the  average  workingman  enjoys.  Pris- 
oners are  still  compelled  to  work,  but  rather  with  the 
thought  of  utility  to  the  prisoner  than  of  actual  gain 
derived  from  his  labor. 

Modern  penal  systems  are  undergoing  rapid  transfor- 
mations. Prevention  and  reformation  are  the  watch- 
words of  the  twentieth  century.  Careful  study  of  the 
causes  of  crime,  a  better  knowledge  of  psychology  and  of 
the  respective  influences  of  heredity  and  environment  give 
grounds  for  hope  that  a  large  part  of  crime  can  be  pre- 
vented and  that  many  criminals  can  be  reformed  and 
made  into  useful  citizens.  It  is  argued  that  the  irre- 
claimable should  be  kept  imprisoned  permanently  for 
their  own  sakes,  and  especially  for  the  sake  of  society. 
Such  theories  are  rapidly  modifying  the  methods  in  use. 
Probation  and  right  training  in  reform  schools  are  tak- 
ing the  place  of  the  fine  and  the  prison,  and  habitual 


THE  JUDICIAL  DEPARTMENT  233 

criminals  are  permanently  imprisoned  under  indetermi- 
nate sentences  that  they  may  no  longer  have  opportunity 
to  commit  other  serious  crimes.  In  short,  society  aims 
to  give  every  person  a  fair  chance,  and  to  protect  itself 
fully  against  those  who  refuse  to  avail  themselves  of  it. 


CHAPTER  XV 

THE  LAWMAKING  DEPARTMENT 

Rise  of  Opposition  to  Autocracy. — As  the  wealth 
and  population  of  a  state  increase,  it  becomes  more  and 
more  difficult  to  govern  along  autocratic  lines.  Numer- 
ous interests  arise  which  do  not  receive  adequate  atten- 
tion from  the  rulers ;  men  whose  capacity  and  attainments 
deserve  recognition  are  slighted;  and  the  private  interests 
of  ruling  classes  absorb  most  of  their  energy,  to  the  neg- 
lect of  public  interests.  Under  such  conditions  there  are 
historically  several  possibilities  of  action: 

1.  The  status  quo  may  be  maintained  and  discontent 
suppressed  by  force,  in  which  case  the  state  would  prob- 
ably slowly  decay  until  absorbed  by  some  rival  after 
defeat  in  war. 

2.  A  system  of  decentralization  may  be  encouraged, 
and  each  important  province  be  allowed  to  regulate  its 
own  affairs  subject  to  tribute  and  a  nominal  supervision, 
the  provinces  being  held  together  by  mutual  interests. 

3.  The  central   authority  may   retain   its   power  but 
gradually  develop  a  system  of  representation  whereby 
important  interests  and  persons  may  receive  due  recog- 
nition. 

This  last  possibility  involves  a  national  application  of 
the  idea  contained  in  the  organization  of  a  primitive 
horde  or  village  community.  All  interests  and  persons 
of  importance  were  included  in  the  small  gatherings  of 

234 


THE  LAWMAKING  DEPARTMENT  235 

these  early  groups.  Even  in  confederate  tribal  life  the 
idea  had  survived  in  the  periodic  gatherings  of  heads  of 
tribes  and  districts  to  administer  general  business.  So 
likewise  in  the  assemblies  of  the  democratic  city  states 
of  the  classic  period,  every  important  citizen  was  able 
to  make  his  influence  felt  in  the  assembly  if  he  were  so 
inclined.  The  difficulty  was  to  apply  the  principle  to  a 
great  national  system,  and  no  ancient  state  ever  proved 
equal  to  the  emergency.  Representation  in  local  gov- 
ernment was  common  enough,  and  representation  of 
privileged  classes  in  great  councils  was  known,  but 
no  system  was  devised  whereby  the  interests  of  all  the 
people  might  be  represented  in  a  great  national  gov- 
ernment. 

The  English  Parliament. — Through  a  series  of 
events  natural  enough  in  themselves,  there  developed  in 
England  during  the  thirteenth  century  an  assembly  of 
delegates,  who  represented  the  common  people  and  petty 
nobility,  as  distinguished  from  the  usual  assembly  of  the 
higher  nobility  and  clergy  in  the  great  council.  Such  an 
assembly  was  by  no  means  an  anomaly  at  that  time.  A 
rude  form  of  representation  existed  among  the  Scandi- 
navian people  as  early  as  the  ninth  century.  About  the 
tenth  century  the  Icelandic  Althing 1  and  the  Tynwald  2 
of  the  Isle  of  Man  (which  still  survives)  were  estab- 
lished. These  were  made  up  of  elected  delegates  who 
prepared  laws,  which  were  promulgated  as  the  law  of  the 
land.  Similar  bodies  may  be  traced  in  other  countries  of 
Europe,  but  they  did  not  attain  political  importance. 
The  English  Assembly  came  when  that  country  was 

1  Constitution  of  Ulfliot,  A.D.  930.    See  Bryce,  Studies  in  History 
and  Jurisprudence,  Essay  V. 
aSee  Caine,  Little  Manx  Nation. 


236      THE  STATE  AND  GOVERNMENT 

breaking  away  from  agriculture  and  developing  com- 
merce and  manufactures,  and  when  kings,  ever  engaged 
in  war  or  the  suppression  of  rebellion,  were  forced  to 
rely  more  and  more  upon  the  support  of  the  common 
people  and  on  taxes  raised  from  urban  centers.  So  con- 
stantly was  the  King  in  need  of  money  grants  and  mili- 
tary support,  that  the  first  two  hundred  years  of  the 
history  of  the  Assembly  of  the  commons  marked  an  al- 
most steady  growth  in  its  power  and  prestige,  since  the 
King  to  secure  their  support  would  grant  their  petitions 
or  bestow  privileges.  During  the  sixteenth  century  the 
historic  Council  of  nobles  and  clergy,  who  formed  the 
House  of  Lords,  was  relatively  weak.  This  was  due 
to  its  depletion  in  numbers  owing  to  the  civil  wars  and 
to  the  nationalization  of  the  church,  which  deprived  that 
body  of  much  of  its  power  and  representation.  In  con- 
sequence the  two  houses  during  the  Tudor  period  were 
fairly  equal,  and  were  firmly  welded  together  into  a 
Parliament.  The  rapid  development  of  commerce  and 
manufactures  under  the  Tudors  and  Stuarts  (1485-1688) 
gradually  transferred  the  balance  of  power  from  the 
Lords  to  the  Commons  as  the  representatives  of  these 
interests,  and  the  rise  of  Great  Britain  to  world  suprem- 
acy in  the  nineteenth  century  made  the  Commons  su- 
preme in  governmental  policy. 

Importance  of  a  Lawmaking  Body. — The  political 
importance  of  this  development  lies  in  the  fact  that  it 
revolutionized  men's  notions  of  governmental  machinery. 
The  ancient  principle  of  governing  through  privileged 
classes,  basing  their  claims  on  noble  birth  and  landed 
wealth,  was  superseded  by  a  system  of  government 
through  persons  who  represented  most  of  the  important 
interests  of  the  state,  and  who  had  influence  in  proper- 


THE  LAWMAKING  DEPARTMENT  237 

tion  to  the  weight  of  interests  and  the  proportion  of  the 
population  they  represented.  The  economic  advantages 
of  such  a  system  were  so  plainly  manifest  that  other 
nations  found  it  expedient  to  imitate  it,  modifying  the 
English  system  to  suit  their  own  peculiar  needs.  In  this 
way  developed  the  modern  bicameral  legislative  body, 
the  center  and  pivot  of  the  modern  democratic  move- 
ment. 

Naturally  enough,  some  of  these  systems  of  leg- 
islative representation  are  not  truly  representative,  but  it 
must  be  understood  that  a  true  system  of  representation 
is  an  ideal  toward  which  modern  governmental  organiza- 
tion approximates.  Much  of  the  dissatisfaction  arises 
from  the  composition  of  upper  houses,  but  these  usually 
have  little  power  if  they  fail  to  voice  the  true  interests  of 
the  nation.  States  are  constantly  experimenting  with 
newfangled  devices  for  the  improvement  of  govern- 
mental machinery.  Hence  such  suggestions  as  those  for 
minority  or  proportional  representation,  the  representa- 
tion of  interests,  the  use  of  the  initiative  and  the 
referendum,  improved  primary  and  electional  laws,  and 
the  regulation  of  political  parties.  It  is  not  to  be  as- 
sumed that  an  ideal  system  of  representation  would  be 
best  under  existing  conditions.  It  would  demand  for  its 
exercise  a  lively  intelligent  interest  in  public  affairs  by 
all  the  citizens,  and  that  condition  has  hardly  been  yet 
attained  in  any  state.  For  this  reason  a  system  in  which 
the  balance  of  power  is  in  the  hands  of  the  wealthy  and 
intelligent  classes  may  prove  more  successful  in  some 
states  than  a  strongly  democratic  system.  Every  state, 
however,  should  endeavor  to  increase  the  prosperity  and 
intelligence  of  all  its  citizens,  and  to  expand  its  system 
of  representation  so  as  to  include  all  persons  who  have  a 


238      THE  STATE  AND  GOVERNMENT 

tangible  and  intelligent  interest  in  the  welfare  of  the 
state. 

Bicameral  System. — The  chance  development 
through  social  distinctions  of  the  English  Great  Council 
into  two  houses  set  the  fashion  for  other  states  also.  The 
confederation  of  the  United  States  of  America  preferred 
a  unicameral  Congress,  and  this  was  favored  for  a  time 
by  Revolutionary  France.  This  French  system  was 
imitated  by  several  of  the  other  Latin  states  and  still  sur- 
vives in  Central  America  and  in  Santo  Domingo  and  in 
many  of  the  commonwealths  of  federations,  outside  of 
the  United  States  of  America,  which  still  retain  the 
bicameral  system.  The  best  argument  for  the  bicameral 
system  seems  to  consist  in  the  opportunity  thereby 
allowed  for  the  balancing  of  varying  interests  and  the 
consequent  check  on  too  hasty  legislation. 

Composition  of  the  Lawmaking  Body. — His^ 
torically  the  prototype  of  the  lawmaking  body  was  the 
collective  body  of  elders  found  in  all  early  states.  In  this 
gathering  met  all  persons  of  consequence  in  those  petty 
communities.  When  the  state  had  arisen  to  the  dignity 
of  a  kingdom  or  empire,  the  council  consisted  of  royal 
princes,  great  nobles,  heads  of  administration  and  re- 
ligion, and  of  persons  famous  for  their  wisdom.3  In 
classic  times  there  grew  up  a  more  numerous  council  or 
assembly,  supplementing  the  work  of  the  older  body,  and 
including  in  its  ranks  the  warriors,  freemen,  or  citizen- 
ship of  the  state.  The  feudal  councils  of  mediaeval  mon- 
archies emphasized  the  necessity  of  the  representation  in 
the  king's  council  of  all  important  districts  through  their 
leading  nobility.  As  municipalities  (boroughs  and 

'The   Vermont    Constitution    still    assumes    that   legislators   are 
persons  most  noted  for  wisdom  and  virtue"  (Chapter  II,  Sec.  36). 


THE  LAWMAKING  DEPARTMENT  239 

cities)  became  important  through  their  wealth  and  popu- 
lation, these,  as  already  explained,4  were  deemed  worthy 
of  representation  through  delegates  appointed  or  chosen 
by  the  corporations  of  the  municipalities.  The  repre- 
sentation of  shires,  or  counties,  in  the  English  system 
virtually  meant  at  first  representation  of  the  lesser  no- 
bility, so  that  the  House  of  Commons  was  made  up  of 
representatives  of  borough  interests  and  of  the  smaller 
landed  estates.  When  modern  democracy  began,  empha- 
sis was  placed  on  human  beings,  irrespective  of  rank, 
official  position,  or  wealth.  These  developments  broadly 
illustrate  the  various  factors  that  enter  into  the  composi- 
tion of  lawmaking  bodies.  These  bodies,  in  other  words, 
are  made  up  of  heads  of  communities  and  men  of  per- 
sonal capacity,  persons  of  dignity  who  represent  nobility 
of  birth,  large  landed  wealth,  or  important  offices  in 
church  or  state;  persons  who  represent  the  collective 
wealth  of  a  locality  or  persons  who  represent  collective 
bodies  of  men  irrespective  of  wealth.  Monarchies  regu- 
larly emphasize  birth,  social  standing,  office,  and  wealth; 
democracies  incline  to  emphasize  persons  and  wealth.  In 
future  developments  it  is  likely  that  corporate  interests 
will  form  a  basis  of  representation;  such  interests,  for 
example,  as  manufactures,  commerce,  agriculture,  labor 
unions,  and  the  professions,  possibly  through  the  repre- 
sentation of  these  in  an  upper  house. 

In  modern  monarchies  the  lawmaking  body  has  its 
upper  house,  made  up  of  members  of  the  nobility  and 
of  the  chief  dignitaries  of  administration  and  religion; 
its  lower  house  will  generally  be  composed  of  represen- 
tatives from  localities,  on  the  basis  of  wealth  or  popula- 

4  Page  236. 


240      THE  STATE  AND  GOVERNMENT 

tion,  but  as  a  rule  discriminating  against  the  poorer  and 
illiterate  classes.  Republics  seek  to  embody  in  the  upper 
house  the  more  conservative  elements  of  the  state,  as 
against  the  more  radical  elements  in  the  lower  house.  In 
federations  the  commonwealths  are  represented  as  such 
in  the  upper  house,  sometimes  equally  as  in  the  American 
system,  but  often  unequally  as  in  Germany,  owing  to  the 
wider  difference  in  the  size  and  importance  of  the  several 
states.  Areas  of  equal  population  or  a  taxpaying  citizen- 
ship are  commonly  represented  in  lower  houses.  In  the 
commonwealths  of  the  United  States  of  America,  the 
tendency  is  to  make  the  upper  house  represent  population 
areas  about  three  times  as  large  as  those  of  the  lower 
house.  As  a  rule  there  is  no  fixed  principle  in  regard 
to  the  relative  size  of  the  two  houses.  The  upper  house 
is  regularly,  but  not  necessarily,  smaller  than  the  lower. 
Large  lawmaking  bodies  are  so  cumbersome  and  inefficient 
that  the  tendency  is  to  reduce  the  absolute  numbers  in  both 
houses  of  legislatures,  but  many  local  factors  modify  this 
tendency. 

The  Initiation  of  Bills. — In  conservative  mon- 
archies, kings  or  emperors  regularly  initiate  all  bills 
through  their  ministers.  Members  by  favor  may  make 
suggestions  in  the  form  of  petitions.  In  democratic  con- 
stitutional monarchies  the  king's  ministers  are  respon- 
sible to  the  parliament  so  that  they  no  longer  voice  the 
monarch's  wishes.  As  a  rule  also  all  members  have  the 
right  to  introduce  bills  and  regularly  do  present  bills  of 
a  local  or  private  nature.  It  has,  however,  become  the 
practice  to  allow  only  party  leaders,  or  a  responsible 
ministry,  to  present  bills  of  importance.  Such  bills  are 
prepared  with  great  care  and  represent  the  policy  of 
those  in  power.  In  republics  the  members  of  either  house 


THE  LAWMAKING  DEPARTMENT  241 

may  initiate  bills  except  perhaps  money  bills.5  In  some 
federations  the  commonwealths  may  have  the  right  to 
introduce  bills  directly,  as  in  Mexico,  or  in  democracies 
the  electorate  may  exercise  the  same  privilege  through 
the  initiative.6 

Besides  these  formal  methods  of  initiating  legislation, 
there  are  other  ways  whereby  matters  involving  legis- 
lation may  come  before  the  legislature : 

1.  The  executive  may  make  suggestions  to  the  legisla- 
ture requesting  legislation  along  specified  lines.     Such 
suggestions  are  frequently  made  by  administrative  de- 
partments with  the  approval  of  the  executive. 

2.  Committees  or  commissions  are  frequently  author- 
ized to  consider  questions  of  policy  and  to  recommend 
to  the  legislature  suitable  lines  of  action. 

3.  A  citizen  or  body  of  citizens  may  exercise  the  right 
of  petition  and  request  the  legislature  to  grant  relief  in 
certain  specified  matters.     The  legislature  is  not  bound 
to  follow  such  suggestions,  and  may  ignore  them  alto- 
gether or  adopt  them  as  may  seem  most  expedient  at  the 
time.    Whenever  it  may  seem  advisable,  legislatures  may 
authorize  the  holding  of  public  hearings,  at  which  all  per- 
sons interested  in  the  success  or  defeat  of  the  proposed 
bill  are  invited  to  be  present  and  present  their  reasons. 
This  device  enables  a  lawmaking  body  to  keep  in  closer 
touch  with  public  opinion  than  otherwise  would  be  pos- 
sible. 

Legislative  Privileges. — In  the  development  of 
lawmaking  powers,  certain  privileges  have  become  fun- 

5  In    the    United    States    "All    bills    for    raising    revenue    shall 
originate  in  the   House   of    Representatives,   but  the   Senate  may 
propose  or  concur  with  amendments  as  on  other  bills"  (Constitu- 
tion, Art.  I,  Sec.  7). 

6  See  pages  300-302. 


242      THE  STATE  AND  GOVERNMENT 

damental  in  theory.  A  house  must  have  the  right  to 
decide  disputes  in  regard  to  its  membership,  such  as  con- 
tested elections.  It  may  delegate  the  decision  of  such 
contests  to  the  courts,  as  in  Great  Britain,  but  the  final 
power  must  reside  in  the  house.  It  must  be  able  to 
punish  its  members  for  unseemly  conduct,  to  coerce  oth- 
ers to  obey  its  lawful  orders,  and  to  maintain  its  dignity 
by  punishment  for  contempt.  Its  members,  even  when 
going  and  coming,  must  be  free  from  arrest  except  for 
serious  crimes;  they  must  be  allowed  freedom  of  debate 
without  fear  of  future  accountability,  and  their  dignity 
as  representatives  must  be  fully  secured.  Each  house 
must  also  have  the  right  to  make  its  own  regulations  and 
its  rules  of  procedure. 

These  rules  vary  greatly  in  different  bodies,  but  are 
always  important.  They  provide  for  the  initiation  and 
the  reading  of  bills,  discussions,  amendments,  and  pas- 
sage, carefully  specifying  each  step  with  the  purpose  of 
allowing  no  bill  to  pass  until  each  member  of  the  house 
has  full  knowledge  of  its  contents  and  an  opportunity 
to  express  an  opinion  for  or  against  the  bill.  To  this 
end  bills  are  read  several  times,  debated  either  before  a 
special  committee  or  the  committee  of  the  whole,  or  in  the 
presence  of  the  house,  thrown  open  to  amendment,  and 
when  finally  submitted  for  passage  each  member  must 
be  allowed  full  freedom  in  voting.  If  comparatively  few 
bills  are  presented  in  a  session,  procedure  is  simple.  As, 
however,  the  number  of  bills  increases  with  democracy 
and  growth  in  national  importance,  pressure  for  time 
compels  modification  in  the  system.  This  may  be  (a) 
in  the  form  of  restrictions  on  debate  by  limitations  on 
the  time  allowed  for  it,  and  by  the  use  of  the  closure  or 
the  previous  question,  or  (b)  by  making  a  distinction  be- 


THE  LAWMAKING  DEPARTMENT  243 

tween  bills  which  affect  the  public  as  a  whole  and  those 
which  relate  to  private  persons,  localities,  and  details  of 
administration.  This  distinction  is  best  made  by  the 
British  Parliament.  Historically,  legislatures  have 
handled  all  kinds  of  bills  and  passed  them  by  the  same 
kind  of  procedure.  The  result  is  that  the  larger  part  of 
legislative  activity  may  be  spent  on  what  is  really  admin- 
istration, this  being  especially  true  of  American  law- 
making  bodies. 

Administrative  Aspect  of  Legislation. — Lawmak- 
ing  bodies,  through  their  control  over  finances,  have  to 
spend  much  time  in  devising  effective  ways  and  means  of 
raising  and  expending  moneys  and  in  the  efficient  super- 
vision of  expenditures.  British- American  systems, 
through  their  fondness  for  working  out  the  details  of 
legislation,  pass  numerous  laws  designed  to  suit  particu- 
lar cases  or  special  emergencies;  matters  which  are 
usually  left  in  other  states  to  the  ordinance  power  of  the 
executive  or  to  some  department  of  administration. 
Such  bodies,  therefore,  besides  having  real  legislative 
functions  in  the  formulation  of  policy  through  law,  also 
exercise  a  vast  ordinance  or  administrative  power  which 
is  liable  to  be  used  in  a  perfunctory  or  inefficient  man- 
ner. By  far  the  larger  part  of  the  unpopularity  of 
modern  legislatures  is  due  to  the  evils  arising  from  this 
confusion  of  legislative  and  administrative  functions. 
In  the  British  Parliament  the  pressure  of  business  has 
compelled  a  different  procedure  for  private  or  local  bills 
so  that  the  time  of  the  whole  house  need  not  be  wasted. 
Such  bills  may  be  referred  to  committees,  whose  decision 
will  be  accepted  as  a  matter  of  course ;  or  classes  of  pri- 
vate bills  may  be  assigned  to  an  administrative  or  judicial 
body  for  settlement  in  accordance  with  some  principle 


244      THE  STATE  AND  GOVERNMENT 

laid  down  by  the  legislature.  Such  a  distinction  is  im- 
portant because  the  number  of  private  bills  introduced  is 
always  large,  usually  more  in  number  than  public  bills, 
and  public  interests  have  to  be  neglected  when  so  much 
attention  is  given  to  matters  of  small  public  importance.7 

The  Committee  System. — When  legislative  busi- 
ness becomes  too  large  entirely  to  be  handled  by  the 
houses  even  with  the  above  modifications,  then  a  com- 
mittee system  is  inevitable.  It  may  (a)  take  a  form  like 
that  of  the  British  cabinet,  which  is  practically  a  com- 
mittee for  the  formulation  of  policy,  or  in  its  legislative 
aspect  for  the  preparation  of  important  bills  and  advo- 
cacy of  them  before  the  Houses.  Or  (&),  as  in  the 
French  system,  committees  may  be  appointed  by  the  law- 
making  bodies  to  consider,  modify,  and  report  on  Minis- 
terial bills  and  such  others  as  may  be  referred  to  them,8 
or  (c),  lacking  a  cabinet  system  for  the  initiation  of 
bills,  as  in  the  United  States  of  America,  all  bills  may  be 
referred  to  standing  committees  of  the  respective  Houses, 
which  are  authorized  to  investigate  them  thoroughly  and 
to  make  recommendations. 

This  committee  system  has  become  so  important  in  the 
United  States  of  America  that  it  has  almost  usurped  the 
deliberative  function  of  the  lawmaking  bodies.  All  bills 
when  entered  in  the  houses  are  promptly  referred  to  com- 
mittees, which  derive  their  importance  from  the  nature 
of  the  business  intrusted  to  them.  Most  of  these  bills 
are  pigeonholed  and  are  never  reported,  a  few  may  be 
reported  adversely  or  without  recommendation,  and 
others,  after  investigation,  public  hearings,  amendments, 

T  See  the  author's  Growth  of  American  State  Constitutions,  p.  224. 
8  See  Lowell,  Governments  and  Parties  in  Continental  Europe, 
vol.  i,  pp.  111-117. 


THE  LAWMAKING  DEPARTMENT  245 

and  perhaps  complete  revisions  in  committee,  are  re- 
ported favorably.  The  pressure  of  time  is  usually  so 
great  that  debate  seldom  arises  over  the  reports  except 
when  the  subject  is  of  great  importance  and  involves 
political  interests.  A  bill  having  passed  one  House  has 
then  to  pass  through  practically  the  same  procedure  in 
the  other  House.  Committees  are  so  arranged  that  the 
dominant  party  controls  the  results  of  their  decisions. 
The  chairmen  of  the  chief  committees  are  also  leaders  of 
that  party,  each  set  in  its  own  House,  and  form  a  sort 
of  inner  circle,  not  unlike  the  English  Cabinet,  for  for- 
mulation of  policy.  Some  one  person  is  selected  as  head 
leader  and  placed  either  in  the  chair  of  the  House  with 
large  powers,  or  in  the  chairmanship  of  one  of  the  prin- 
cipal committees  and  authorized  to  guide  the  party  on 
the  floor  of  the  House.  The  committee  system  is  open 
to  many  objections,  based  chiefly  on  its  secrecy  of  pro- 
cedure and  its  practical  usurpation  of  legislative  func- 
tions, yet  it  is  plainly  useful  and  under  present  conditions 
necessary.  Time  may  remedy  its  defects  or  substitute  in 
part  a  system  that  may  insure  greater  responsibility  and 
susceptibility  to  public  opinion. 

The  Veto  Power. — The  passage  of  bills  by  a  legis- 
lature does  not  always  imply  that  such  bills  at  once 
become  laws.  There  are  usually  general  or  special  pro- 
visions specifying  at  what  times  the  bills  shall  take  effect. 
In  addition  to  this  almost  all  states  place  in  the  execu- 
tive's hands  the  veto  power.  This  may  be  absolute  or 
suspensive.  In  the  first  case  an  executive's  veto  kills  the 
bill  and  the  labor  of  the  legislature  has  been  in  vain.  In 
the  second  case  the  bill  is  sent  back  for  reconsideration. 
If  on  reconsideration  the  bill  again  passes,  no  further 
veto  is  interposed.  The  absolute  veto  is  used  only  in 


246      THE  STATE  AND  GOVERNMENT 

monarchical  systems.  The  use  of  the  English  cabinet 
system  virtually  makes  this  veto  obsolete,  for  all  bills 
submitted  to  the  King  for  signature  have  been  approved 
by  his  Cabinet,  and  under  such  circumstances  the  King 
would  not  venture  to  oppose  the  combined  wishes  of  his 
Cabinet  and  lawmaking  body.  In  some  states,  also,  be- 
fore bills  are  finally  passed,  they  must  be  submitted  to 
the  electorate  for  approval  or  rejection.  This  form  of 
veto,  known  as  the  referendum,  is  found  only  in  coun- 
tries where  democratic  influences  are  powerful. 

Legislative  Powers  in  Determining  Policy. — When 
the  English  House  of  Commons  began  to  exert  its 
powers,  it  was  almost  entirely  under  the  control  of  the 
Executive,  who  sent  his  Ministers  into  the  House  and 
tried  to  dictate  or  influence  its  decisions.  This  was  the 
reason  why  the  House  fought  so  vigorously  to  control 
the  appointment  of  the  King's  Ministers.  When  this 
had  been  accomplished,  the  House  was  thereby  able  to 
dictate  to  the  King  his  policy.  It  is  inconceivable  that  a 
wise  king  would  refuse  to  accept  the  advice  of  a  ministry 
who  represented  the  will  of  a  dominant  parliament. 
There  are,  therefore,  two  great  monarchical  systems  for 
the  formulation  of  legislative  policy:  (a)  the  will  of  an 
autocratic  king  expressed  through  his  ministers,  or  (b) 
the  will  of  a  parliament  expressed  through  a  ministry 
forced  on  the  king.  The  essence  of  the  distinction  is  best 
obtained  by  noting  whether  the  ministry  is  responsible 
to  the  king  only,  or  to  the  parliament. 

Legislative  Determination  of  Policy  in  the  United 
States. — In  the  United  States  of  America,  owing  to  the 
use  of  separated,  coordinated  departments,  the  English 
system  was  not  feasible.  How  legislative  policy  should 
be  formulated  under  such  conditions  was  a  problem.  At 


THE  LAWMAKING  DEPARTMENT  247 

first  the  President,  aided  by  prominent  members  of  the 
Congress,  dictated  this  policy,  and  this  system  might 
have  become  permanent  had  the  President's  views  regu- 
larly harmonized  with  the  opinions  of  Congress.  This, 
however,  was  seldom  true  after  1824,  and  in  conse- 
quence each  House  has  developed  a  system  of  voicing 
its  policy  through  a  legislative  caucus.  The  members  of 
the  dominant  party  in  either  House  meet  in  private  ses- 
sion, formulate  a  policy,  and  intrust  the  execution  of  it 
to  their  natural  leaders,  who,  as  chairmen  of  the  prin- 
cipal committees,  are  able  to  control  legislation.  In  the 
House  these  powers  are  centered  in  the  Speaker  and  in 
the  leader  on  the  floor  who,  subject  always  to  the 
approval  of  their  party  following,  direct  the  machinery 
of  the  House  toward  the  accomplishment  of  the  policy 
outlined  by  the  caucus.  The  system  is  practically  the 
same  in  both  Houses,  except  that  in  the  Senate  the  chair- 
men of  the  principal  committees  unitedly  guide  the 
Senate's  policy,  as  the  presiding  officer  is  by  constitu- 
tion the  Vice-President  of  the  United  States  of  America 
and  is  not  subject  to  the  control  of  the  Senate,  and  may 
happen  to  be  a  member  of  a  party  in  opposition  to  the 
majority  party  of  the  Senate.  In  the  American  system, 
therefore,  legislative  policy  is  voiced  through  party 
caucuses  under  the  guidance  of  their  leaders,  who  act  as 
chairmen  of  important  committees  and  thus  control  leg- 
islation. As  the  President  has  the  veto  power,  if  he  and 
the  two  Houses  of  legislation  are  not  of  the  same  political 
party,  then  important  legislation  is  either  not  passed  or 
is  passed  by  a  series  of  compromises  after  numerous 
joint  conferences  have  been  held. 

A  legislative  body,  therefore,  in  formulating  its  policy 
will  either  name  the  executive's  council  and  work  through 


248      THE  STATE  AND  GOVERNMENT 

them,  or  will  work  through  its  own  leaders  and  then 
seek  to  harmonize  its  policy  as  far  as  possible  with  that 
of  the  executive  department.  In  the  study  of  any  state 
which  has  a  legislative  department,  therefore,  one  should 
note  carefully  the  respective  powers  of  the  two  depart- 
ments in  the  formulation  of  policy,  and  should  see  how 
harmony  of  purpose  is  attained.  When  the  two  depart- 
ments are  evenly  balanced  in  power,  conflicts  for  suprem- 
acy may  arise,  as  in  the  struggle  of  President  Wilson  and 
the  Senate  over  the  ratification  of  the  Peace  Treaty.  In 
Mexico  the  two  departments  are  theoretically  coordinate, 
but  in  reality  the  Executive  dictates  legislative  policy. 
France  uses  the  English  cabinet  system  in  form,  but  the 
legislative  leaders  of  the  Chamber  of  Deputies  frequently 
dictate  the  policy  to  be  followed  by  the  Cabinet;  but 
this  is  seldom  possible  in  the  British  House  of  Commons. 
Powers  of  the  Popular  Assembly. — In  tribal  com- 
munities, popular  assemblies  made  up  of  warriors  or 
freemen  usually  have  merely  the  power  of  assent  or  dis- 
sent to  proposals  submitted  by  the  smaller  council  of 
leaders.  The  large  powers  exerted  by  the  popular 
assemblies  of  Athens  and  Rome  are  familiar  to  all 
students  of  the  classics.  When  the  English  House  of 
Commons  began"  its  existence  in  the  thirteenth  century  its 
powers  were  extremely  meager.  It  met  simply  to  advise 
the  King  in  regard  to  the  amount  of  taxes  its  members 
would  be  willing  to  have  assessed  on  their  constituencies. 
But  the  commercial  instinct  of  quid  pro  quo  soon  led 
these  delegates  to  a  series  of  bargainings,  whereby  each 
grant  of  money  on  their  part  resulted  in  the  gain  of 
privileges  extorted  from  the  King  and  the  nobility.  Each 
class  naturally  legislates  for  its  own  interests,  and,  dur- 
ing the  regime  of  king  and  nobles,  commoners  had 


THE  LAWMAKING  DEPARTMENT  249 

secured  only  the  crumbs.  But  on  the  other  hand,  as  they 
came  into  power  they  secured  for  themselves  more  and 
greater  concessions,  until  they  won  as  their  right  suprem- 
acy in  legislation  and  in  governmental  systems.  In  place 
of  an  autocratic  monarch,  the  fountain  of  law  and  jus- 
tice, surrounded  by  nobility  and  clergy  as  bulwarks  of 
the  throne,  aiding  him  by  advice,  arms,  and  spiritual 
terrors,  there  has  developed  an  autocratic  assembly  which 
allows  the  king  to  remain  in  office  during  good  behavior, 
but  reserves  the  privilege  of  beheading  or  removing  him 
at  will,  and  which  forces  him  to  accept  as  his  cabinet 
its  own  leaders  and  to  formulate  a  policy  in  governmental 
matters  only  after  consultation  with,  and  approval  of, 
the  cabinet. 

It  is  evident  that  such  a  body,  though  nominally  legis- 
lative, is  more  than  that,  for,  through  its  leaders  and  by 
its  lawmaking  and  constituent  powers,  it  guides  and 
controls  the  entire  business  of  the  state,  executive  and 
judicial  as  well  as  legislative.  This  rise  of  a  popular 
assembly  into  power  depends,  as  already  explained,  on 
the  development  of  large  commercial  and  manufacturing 
interests.  The  spirit  of  an  autocratic  monarchy  seems 
to  find  its  best  expression  in  a  state  which  relies  chiefly 
on  agriculture.  The  stability  and  uniformity  of  that 
life  seem  best  to  suit  the  conservative  instincts  of  king 
and  landed  nobility.  Commercialism  tends  to  introduce 
a  more  flexible  executive  system ;  it  weakens  belief  in  the 
divine  right  of  king  and  nobility  and  demands  leaders  in 
sympathy  with  commercialism  and  capable  of  readjust- 
ing the  political  system  to  the  changing  conditions  of 
the  age.  This  change  may  be  brought  about  conserva- 
tively by  depriving  king  and  nobility  of  political  power, 
but  retaining  them  as  social  "survivals"  or  ornaments; 


250      THE  STATE  AND  GOVERNMENT 

or,  more  radically,  by  substituting  in  their  stead  elective 
officials,  who  may  be  removed  from  office  at  stated  times 
or  whenever  necessity  requires. 

Power  of  the  Lower  House. — So  important  a 
change  as  this  is  not  easily  accomplished,  and  seldom 
without  revolution.  The  history  of  all  commercial  states, 
ancient  or  modern,  illustrates  the  principle.  In  England 
the  process  began  by  attempts  on  the  part  of  the  House 
of  Commons  to  compel  the  King  either  to  accept  Minis- 
ters named  by  it  or  to  consent  that  Ministers  named  by 
him  be  responsible  to  the  House.  Bills  of  attainder  and 
bills  of  impeachment  were  weapons  used  by  the  House 
in  the  attainment  of  its  object.  The  Puritan  Revolution 
and  the  Revolution  of  1688  definitely  fixed  the  principle 
and  applied  it  to  Kings  as  well  as  to  Ministers.  The  rise 
and  development  of  the  premiership9  in  the  eighteenth 
and  nineteenth  centuries  worked  out  a  system  whereby 
the  real  work  of  government  might  be  done  by  the 
House,  while  retaining  the  forms  and  appearance  of  an 
autocratic  monarchy.  The  United  States  of  America  at 
the  adoption  of  its  Constitution  went  one  step  farther 
when  it  refused  to  establish  kingship  and  nobility,  and 
in  their  stead  established  an  elective  head  assisted  by 
ministers  appointed  or  elected  for  definite  terms,  all  sub- 
ject to  removal  on  impeachment  by  the  lawmaking  body. 
Naturally  these  same  principles  apply  to  the  struggle  for 
supremacy  which  generally  arises  between  the  two  houses 
of  legislation.  In  monarchies  they  represent  distinct  sets 
of  interests,  not  always  harmonious.  Each  desires  to 
have  the  final  voice  in  decisions,  and  victory  ultimately 
goes  to  that  one  which  represents  more  truly  the  broader 
interests  of  the  nation.  In  democracies  the  two  houses 
"This  office  was  legally  recognized  in  1906. 


THE  LAWMAKING  DEPARTMENT  251 

tend  to  represent  practically  the  same  kinds  of  interests, 
and  full  cooperation  is  hindered  only  by  natural  rivalries 
based  on  beliefs  as  to  the  respective  importance  of  the 
two  houses. 

Functions  of  Legislative  Bodies. — The  numerous 
functions  of  modern  lawmaking  bodies  may  be  broadly 
classed  under  four  heads,  though  there  are  many  differ- 
ences in  detail  and  in  the  scope  of  powers  exercised 
under  each  head.  . 

*.  They  have  the  right  to  declare  and  to  formulate 
the  law  of  the  land,  removing  what  has  become  obsolete, 
making  clear  what  is  ambiguous,  and  supplying  new  laws 
to  suit  the  changing  conditions  of  social  life.  This  flexi- 
bility introduced  into  law  has  enabled  states  to  adapt 
themselves  readily  to  altering  conditions,  a  thing  well- 
nigh  impossible  under  ancient  theories  of  fixed  and  un- 
changing law. 

2.  They  have  the  right  to  decide  on  the  amount  of  tax 
to  be  levied  for  governmental  purposes,  the  goods  or 
other  property  on  which  it  should  be  levied  and  to  con- 
trol the  levying  and  expenditure  of  such  taxes  by  reserv- 
ing the  right  to  hold  responsible  and  to  instruct,  or  even 
to  appoint,   all  important  officers   in  charge  of  public 
funds.    This  "power  over  the  purse"  has  been  the  most 
effective  agency  in  enabling  the  lawmaking  body  to  con- 
trol the  other  departments  of  government. 

3.  Lawmaking  bodies  have  slowly  won  or  are  winning 
the  right  to  dictate  the  policy  of  the  state  in  international 
affairs.    This  historic  power  of  the  executive  is  passing 
under  the  control  of  the  legislative  department,  which 
leaves  to  the  executive  the  form  of  power,  but  exercises 
the  substance  of  it  through  its  control  over  finance  and 
over  the  ministry  or  cabinet  of  the  executive.     In  this 


252      THE  STATE  AND  GOVERNMENT 

usurpation  of  powers  properly  executive  it  may  assist 
in  the  making  of  treaties,  or  declare  war,  or  share  in  the 
appointment  of  diplomatic  or  military  officers. 

4.  The  lawmaking  body  in  many  other  ways  is  now 
able  to  exert  power  not  primarily  legislative.  It  may 
exercise  judicial  functions  in  deciding  cases  of  contested 
election,  or  in  trying  its  own  members  or  officers  of  the 
other  departments  of  government.  It  may  appoint,  or 
assist  in  the  appointment,  of  officials,  regulate  the  army, 
navy,  and  civil  service,  appoint  and  supervise  administra- 
tive commissions,  and  regulate  more  or  less  completely 
the  policy  and  administration  of  the  other  departments 
of  government. 

These  classes  of  functions  show  clearly  the  importance 
of  lawmaking  bodies  in  political  development.  Almost 
unknown  in  Western  civilization  down  to  the  nineteenth 
century,  except  in  England  and  her  American  colonies, 
they  have  suddenly  pushed  to  the  front  as  agencies  for 
economic  and  democratic  development,  and  have  reached 
perhaps  the  acme  of  their  powers.  Their  natural  limita- 
tions are  now  becoming  manifest,  and  at  present  they  do 
not  enjoy  the  confidence  formerly  placed  in  them.  It 
remains  to  be  seen  whether  by  internal  changes  they  will 
become  more  efficient  and  regain  lost  confidence,  or  be 
superseded  by  more  trustworthy  governmental  agen- 
cies.10 

10  For  example,  by  the  constitutional  convention  in  the  making 
of  fundamental  law,  and  by  the  electorate  through  the  use  of  the 
initiative  and  referendum. 


CHAPTER  XVI 

THE  DEVELOPMENT  OF  LAWMAKING 

Immutable  Character  of  Ancient  Law. — Laws  in 
the  beginnings  of  political  life,  it  may  be  recalled,  were 
not  made  at  all  in  the  modern  sense;  they  grew  out  of 
longstanding  habits  of  mind  and  well  recognized  cus- 
toms. Naturally,  in  savage  or  nomadic  life,  to  men 
whose  memory  of  things  seldom  went  back  of  two  or 
three  generations,  many  customs  would  seem  even  more 
ancient  than  they  really  were.  When  codes  of  laws  were 
memorized  and  handed  down  by  tradition,  as  so  fre- 
quently was  the  case,  or  when  the  invention  of  the  art 
of  writing  supplemented  the  memory  of  man,  far  greater 
fixity  and  conservatism  were  possible  in  both  law  and 
custom.  Hence  ancient  political  systems  of  the  patri- 
archal type  always  assumed  that  the  law  of  the  land  was 
permanent  and  immutable,  like  the  "law  of  the  Medes 
and  Persians,  which  altereth  not,"  l  or  the  ancient  and 
long-standing  customs  of  England,  tracing  back  to  a 
"time  whereof  the  memory  of  man  runneth  not  to  the 
contrary."  2  Founded  on  traditional  custom  as  ancient 
law  was,  and  in  a  static  civilization,  it  seemed  change- 
less and  divine.  Only  impious  hands  would  dare  to 
alter  sacred  customs  ordained  and  sanctioned  by  the 
gods. 

1  Daniel  VI,  8. 

"See  Blackstone's  Commentaries,  Introduction,  Section  3. 

253 


254      THE  STATE  AND  GOVERNMENT 

Processes  of  Change. — Yet  no  set  of  customs  is 
sufficient  to  meet  the  requirements  of  a  changing  civiliza- 
tion, and  hence  there  has  regularly  been  a  sort  of 
necessity  for  a  periodic  modification  of  the  old  and  in- 
troduction of  the  new.  There  are  several  processes 
whereby  such  changes  were  accomplished. 

I.  Change  Through  Conquest. — A  fundamental  and 
prolific  source  of  change  arises  from  conquest.    The  his- 
tory   of    civilization   is    one   long   series    of    conquests 
involving  compulsory  amalgamations  of  race  and  assimi- 
lations of  customs.    Every  subjugation  implies  modifica- 
tion of  custom  since  neither  party  can  maintain  its  own 
customs  intact.      Some  customs  of  the  conquered  are 
ruthlessly  suppressed,  others  modified  and  others,  again, 
slowly  become  assimilated  through  unconscious   imita- 
tion.    The  fact  that  conquerors  and  conquered  become 
subject  to  practically   similar  environmental  conditions 
also  tends  to  produce  uniformity  of  custom,  each  uncon- 
sciously   conforming    somewhat    to    the    other.     Such 
processes  are  always  going  on  in  human  experience,  and 
numerous  illustrations  of  it  in  modern  times  will  readily 
suggest  themselves,3 

II.  Change  Through  Interpretation. — Again,  no  mat- 
ter how  static  a  civilization  may  be,  no  generation  has 
just  the  same  environment  as  its  predecessor,  nor  do  its 
people  interpret  customs  exactly  as  did  their  ancestors. 
Hence  by  a  slow  and  gradual  process  changes  creep  into 
the  law,  unheeded  and  unknown  except  as  comparisons 
can  be  made  at  intervals  of  several  generations.     This 
tendency  may  be  supplemented  by  strained  interpretations 
of  ancient  customs  and  by  the  aid  of  the  legal  fiction. 
Judges  even  in  modern  times  in  their  anxiety  to  satisfy 

1  The  Balkan  states  furnish  many  illustrations  of  this  process. 


DEVELOPMENT  OF  LAWMAKING  255 

their  sense  of  justice,  will  modify  the  meaning  of  the  law 
on  the  assumption  that  the  law  intends  to  do  right  but 
happens  at  times  to  be  somewhat  unfortunate  in  its 
phraseology.  This  belief  in  the  inherent  justice  of  the 
law  leads  in  all  ages  to  the  introduction  of  legal  fictions, 
so  marked  in  their  influence  in  the  development  of 
Roman  and  English  law.  A  legal  fiction  assumes  a  thing 
to  be  true  in  law  which  is  plainly  not  true  or  is  probably 
false.  The  end  always  must  be  justice,  not  injury,  so 
as  to  satisfy  the  spirit  of  the  law.  Numerous  illustra- 
tions of  legal  fiction  still  survive  in  modern  legal  systems, 
but  its  importance  as  a  modifier  of  law  has  been  super- 
seded by  legislation.4 

III.  Change  Through  Commentators. — Akin  to  inter- 
pretation is  the  influence  exerted  by  learned  commenta- 
tors of  the  law.  Every  legal  system,  whether  secular 
or  religious,  develops  a  body  of  learned  men  who  devote 
themselves  to  a  close  philosophic  study  of  the  law.  The 
judge  seeks  to  apply  a  principle  to  a  case,  but  the  jurist 
seeks  to  ascertain  the  principle  involved  in  the  law,  and 
to  harmonize  it  with  broad  ethical  principles.  They  may, 
of  course,  go  too  far  in  their  search  for  principles  and 
may  find  them  on  the  point  of  a  needle  or  in  the  crossing 
of  a  t,  but  such  casuists  do  not  exert  a  permanent  influ- 
ence. A  jurist,  however,  who  with  reason  and  lucidity 
shows  the  inner  meaning  of  law  in  its  relation  to  a  larger 
sphere  of  life,  is  always  listened  to  with  deference  and 
his  opinions  gradually  influence  the  reasoning  of  other 
jurists  and  judges.  In  this  way  the  profound  wisdom 
of  eminent  Roman  and  British-American  commentators 
deeply  influenced  the  development  of  their  respective 

4  See  S.  E.  Baldwin,  Modern  Political  Institutions,  Chap.  VIII, 
"The  Decadence  of  the  Legal  Fiction." 


256      THE  STATE  AND  GOVERNMENT 

systems,  as  their  ideas  became  slowly  assimilated  to  the 
legal  knowledge  of  their  times. 

IV.  Change  Through  Codifications. — Codifications 
of  customs  have  proved  to  be  a  great  source  of  innova- 
tion, and  many  of  them  have  been  important  in  the 
development  of  civilization.  The  oldest  extant  is  that  of 
Hammurabi,5  dating  back  to  2285-2242  B.C.  The 
codification  of  Hebraic  custom  contained  in  the  Penta- 
teuch is  familiar  to  most  of  Christendom.  The  Orient 
has  many  codes,  a  knowledge  of  which  is  becoming  in- 
creasingly common  in  Western  civilization.  The  Twelve 
Tables  of  Roman  law  and  the  codification  of  Justinian 
mark  two  great  epochs  in  legal  history.  Teutonic  and 
Celtic  codifications  are  numerous  and  form  important 
landmarks  in  early  European  history.6  In  more  modern 
times  the  code  of  Napoleon  and  the  imperial  codes  of 
Germany  and  Japan  are  typical  in  character  and  impor- 
tance. 

Codifications  usually  arise  because  of  the  conflict  of 
rival  interests  and  resultant  compromises.  In  the  process 
of  subjugation  the  conflicting  customs  of  conquerors  and 
conquered  may  result  in  a  codification  of  customs  in 
order  that  each  may  know  the  other's  law  and  this  may 
result  in  a  compromise  formulating  a  statement  of  what 
law  shall  be  enforced  in  the  whole  community.  Class 
struggle  or  revolution  within  a  state  may  in  a  similar 
manner  result  in  a  compromise  that  may  be  formally  ex- 
pressed in  a  definite  code,  at  times  partaking  almost  of 
the  nature  of  a  treaty  between  warring  parties,  as,  for 

5  See  R.  F.  Harper,  editor,  The  Code  of  Hammurabi.    A  partial 
code  on  tablets  discovered  at  Nippur,  and  dating  back  as  far  as 
3000  B.C.,  has  recently  been  translated,  showing  a  high  develop- 
ment of  law  even  at  that  early  date. 

6  See,  for  illustrations,  Edward  Jenks,  Law  and  Politics  in  the 
Middle  Ages. 


DEVELOPMENT  OF  LAWMAKING  257 

instance,  the  Ten  (Twelve)  Tables  of  Rome  and  the 
Magna  Charta  (section  61).  Codifications  may  also  be 
due  to  important  changes  in  the  internal  conditions  of 
the  community,  such  as  the  rise  of  a  commercial  civiliza- 
tion with  urban  interests,  supplanting  agriculture  in 
importance,  or  to  a  scientific  desire  for  a  clearer  state- 
ment of  existing  law,  especially  when  it  is  complicated 
by  a  conflicting  mass  of  interpretations  due  to  the  lapse 
of  centuries.  The  invention,  also,  of  the  art  of  writing 
seemed  to  result  in  codifications  of  law  as  an  aid  to 
memory. 

Codifications  are  important  in  the  history  of  legisla- 
tion because  they  are  in  effect  real  legislation.  No  codifi- 
cation can  be  an  exact  statement  of  all  the  customs  at 
that  time  enforceable  by  the  state.  Some  will  be  omitted 
from  the  written  statement,  changes  may  be  made  inad- 
vertently or  intentionally,  and  perhaps  even  important 
provisions  added.  In  former  times  the  fact  that  a  thing 
was  written  gave  sanctity  to  it  in  general  estimation. 
A  written  code,  therefore,  becomes  a  sort  of  sacred  law, 
not  to  be  tampered  with  by  profane  hands,  each  word  of 
which  has  a  weighty  meaning.  Development,  therefore, 
inevitably  takes  place  through  interpretation,  aided  by 
the  legal  fiction,  and  this  process  may  go  on  for  centuries. 
Roman  law,  for  instance,  at  the  height  of  its  development 
was  theoretically  supposed  to  be  identical  with  the  law 
of  the  Twelve  Tables,  just  as  the  English  common  law 
of  to-day  is  supposed  to  be  the  same  in  theory  as  that 
formulated  centuries  ago  in  the  Magna  Chsrta  and 
through  the  judicial  decisions  of  the  thirteenth  century. 
The  so-called  "worship  of  the  Constitution'*  in  the 
United  States  of  America  presents  the  same  phenome- 
non. It  was  made  by  the"  "Fathers"  and  should  be 


258      THE  STATE  AND  GOVERNMENT 

changed  rarely  if  ever,  in  the  opinion  of  many.  This 
document  has  in  form  changed  but  slightly  in  the  last 
hundred  years,  but  its  makers  would  have  difficulty  in 
understanding  its  modern  meaning  as  reached  through 
interpretation.  Similar  illustrations  might  be  made 
from  the  numerous  creeds  that  regularly  develop  from 
varying  interpretations  of  inspired  writings.  In  other 
words,  the  phraseology  of  the  code  becomes  a  reservoir 
of  an  infinity  of  meanings,  and  each  generation  selects 
from  the  storehouse  such  interpretations  as  suit  the  con- 
ditions and  ideals  of  the  times. 

V.  Changes  Through  the  Executive. — In  all  these 
possibilities  of  change  in'  existing  law,  the  underlying 
assumption  was  that  the  law  was  the  same,  unchanging, 
inherently  divine,  and  fundamental  to  civic  welfare.  But 
there  developed  in  the  executive  a  power  that  practically 
amounted  to  the  formulation  of  new  law.  As  head  of 
the  state,  and  the  eyes  and  the  brain  of  his  people,  the 
king  was  supposed  to  watch  over  the  interests  of  the 
community  and  secure  its  welfare.  In  so  doing  he  issued 
decrees,  ordinances,  or  proclamations  calling  attention  to 
the  law,  supplying  its  details,  and  making  application  of 
it  to  existing  conditions.  In  this  work  he  was,  of 
course,  aided  by  his  council,  which,  by  the  wisdom  and 
experience  of  its  members,  gained  influence  in  govern- 
mental policy.  The  decisions  of  king  and  council  plainly 
could  not  and  would  not  always  conform  to  the  strict 
letter  of  the  law.  New  conditions  demand  new  theories, 
and  under  color  of  the  old  the  king  would  decree  the  new. 
An  entirely  new  condition  would  necessitate  an  entirely 
new  law,  itself  divine  in  origin  as  emanating  from  a 
divinely  appointed  ruler.  In  this  way  executives  gradu- 
ally assumed  the  right  to  modify  ancient  customs  and 


DEVELOPMENT  OF  LAWMAKING  259 

make  new  law  when  demanded.  This  ordinance  power 
of  the  executive  is  still  important,  being  also  the  prolific 
source  of  administrative  rules  and  regulations. 

The  same  theory  would  apply  to  the  assemblies  of 
democratic  city  states.  These  were  not  supposed  to  alter 
the  existing  constitution,  but  in  practice,  in  what  we 
would  call  the  exercise  of  police  power,  they  sometimes 
initiated  new  legal  principles,  or  passed  ordinances  some 
of  which  would  themselves  seem  to  be,  before  many  years 
had  elapsed,  ancient  and  long-standing  customs.  In 
modern  systems  the  royal  council,  as  already  explained, 
has  developed  into  a  legislative  body  whose  acts  when 
approved  by  the  executive  become  law.  But  the  ordi- 
nance power  of  the  latter  department  still  survives  and 
is  exercised  in  all  states.  In  relative  importance  it  yields 
to  legislation,  which  it  is  supposed  merely  to  supplement. 
If  necessity,  however,  should  demand,  this  ordinance 
power  of  the  executive  becomes  of  the  utmost  impor- 
tance; in  times  of  crisis,  in  the  form  of  war  power,  police 
power,  or  prerogative,  it  may  temporarily  even  super- 
sede the  ordinary  law  of  the  land.  The  Roman  dictator- 
ship furnishes  a  peculiar  form  of  such  temporary  des- 
potic power  in  the  executive,  and  also  illustrates  the 
fact  that  legal  irresponsibility  during  the  crisis  is  regu- 
larly followed  by  accountability  with  the  return  of  peace. 

Modern  Legislation. — Modern  legislation  is  not 
the  result  of  a  system  carefully  planned  in  advance  and 
put  into  operation  by  wise  statesmen.  Rather,  it  is  an 
accidental  growth  and  the  result  of  numerous  petty  hap- 
penings of  small  consequence  in  themselves.  When  the 
English  Crown  in  the  thirteenth  century  summoned  un- 
willing delegates  from  the  shires  and  boroughs  to  meet 
him  for  the  discussion  of  money  grants,  it  was  merely  a 


260      THE  STATE  AND  GOVERNMENT 

tactful  device  to  obtain  larger  grants  in  a  more  expe- 
ditious manner.  It  was  a  small  thing  to  give  in  return 
some  slight  favor  petitioned  for  by  the  delegates.  Yet  in 
the  course  of  years  these  petitions  began  to  come  with 
due  regularity  whenever  the  delegates  met  in  session,  and 
the  requests  were  increasing  in  importance.  Promises, 
however,  were  easily  made  when  much-needed  money 
was  in  sight  and  might  conveniently  be  forgotten  when 
the  Parliament  was  no  longer  in  session.  It  was  a  little 
more  serious  when  royal  promises  had  to  be  fulfilled 
before  the  grants  were  made,  but  it  was  hard  to  refuse 
under  the  circumstances.  Yet  a  century  or  two  of  this 
sort  of  thing  set  precedents  for  later  centuries,  and  it 
was  natural  enough  that  a  body  of  delegates  representing 
constituencies  rapidly  increasing  in  wealth,  intelligence, 
and  importance  should  enlarge  from  time  to  time  the 
scope  of  their  petitions.  When  the  issue  was  fairly 
joined  in  the  seventeenth  century,  and  the  Stuart  Kings 
awoke  to  the  fact  that  the  House  of  Commons  did  not 
really  believe  in  royal  supremacy  and  divine  right,  mat- 
ters had  gone  too  far  to  be  checked.  The  beheading  of 
Charles  I  and  the  dethronement  of  James  II  taught  the 
Crown  that  a  petition  of  the  House  was  a  command, 
couched  in  respectful  terms.  In  this  humble  way  de- 
veloped modern  legislation,  a  most  powerful  and  effective 
device  for  the  abolition  of  the  obsolete  and  the  establish- 
ment of  the  new,  as  France  learned  at  the  end  of  the 
eighteenth  century. 

The  Making  of  New  Law. — Modern  legislation 
does  not  profess  to  be  a  mere  interpretation  of  the  law, 
but  boldly  proclaims  that  it  aims  to  formulate  new  law. 
The  introduction  of  this  method  of  lawmaking  is  the 
deathblow  to  enlargement  of  law  by  legal  fiction, 


DEVELOPMENT  OF  LAWMAKING  261 

interpretation,  equity  principles,  or  royal  ordinance. 
Circumlocution  becomes  no  longer  necessary,  for  a  par- 
liament has  but  to  pass  a  statute  embodying  needed 
changes  and  the  thing  is  done.  The  older  devices  are 
of  use  only  when  legislation  is  impossible.  In  times  of 
sudden  crisis  ordinance  power  comes  to  the  front.  With 
a  written  constitution  almost  impossible  of  amendment 
by  legislation,  as  is  the  Constitution  of  the  United  States 
of  America,  interpretation  must  be  relied  on.  But  these 
devices  rapidly  pass  into  disuse  as  legislatures  obtain 
control  of  lawmaking  and  meet  frequently  for  the  con- 
sideration of  possible  changes.  To  be  sure,  there  are 
natural  limitations  to  this  apparent  omnipotence  of  leg- 
islatures. After  all,  only  those  laws  can  be  enforced 
which  conform  to  the  customs  and  practical  ideals  of 
social  life.  New  law  must  suit  conditions  or  it  proves 
ineffective.  An  unscientific  law  may  involve  some  altera- 
tion in  the  fundamentals  of  human  nature  and  a  states- 
man should  hesitate  long  before  he  attempts  that.  Then, 
too,  incompetency  and  corruption  on  the  part  of  legis- 
latures inevitably  result  in  a  lessening  of  their  powers, 
and  consequent  increase  in  the  powers  of  the  other 
departments  of  government.  Yet,  after  all  is  said,  mod- 
ern legislation  is  a  most  powerful  addition  to  govern- 
mental machinery,  and  when  rightly  utilized  can  become 
productive  of  much  good  in  the  state. 

Scientific  Legislation. — These  several  tendencies  in 
legislation  point  to  a  time  when  legislation  will  be  far 
more  scientific  than  it  is  at  present.  American  lawmak- 
ing bodies  formulate  entirely  too  many  laws  for  petty 
and  routine  matters  which  might  more  wisely  be  left  to 
administrative  bodies.  Much  hasty  legislation  could  be 
vastly  improved  if  legislators  were  more  familiar  with 


262      THE  STATE  AND  GOVERNMENT 

the  experiments  and  experiences  of  other  lawmaking 
bodies.  There  is  need  for  the  more  careful  drafting  of 
bills  so  as  to  eliminate  the  many  inaccuracies  and  am- 
biguities so  common  in  legislation.  Bureaus  for  the 
study  of  comparative  legislation,  like  the  legislative 
reference  bureau  developed  by  Wisconsin  and  found  now 
in  most  states,  and  expert  commissions  appointed  for  the 
careful  revision  of  statutes  are  steps  in  this  direction. 

But  really  scientific  legislation  is  as  yet  an  ideal  to  be 
attained.  The  fault  found  with  legislatures  is  chiefly 
due  to  their  failure  to  satisfy  the  ideals  aroused  by  the 
optimistic  democracy  of  the  eighteenth  century.  We  all 
have  to  admit  the  truth  of  Spencer's  denunciation  of  the 
"Sins  of  Legislators"  7  and  of  the  perennial  criticisms 
of  American  legislation.  There  is  a  vigorous  demand 
that  legislation  be  wiser,  and  that  it  emphasize  permanent 
general  interests  through  a  knowledge  of  history  and  of 
the  laws  of  human  nature  and  social  development. 
Jeremy  Bentham  (1748-1832)  voiced  this  demand  for 
the  nineteenth  century  in  his  Theory  of  Legislation.  It 
is  likely  that  studies  in  social  psychology  will  help  to 
supply  for  the  twentieth  century  a  wiser  basis  for  legis- 
lation. 

Basis  for  Scientific  Legislation. — Legislation  of  a 
prohibitory  sort,  like  criminal  law,  should  be  understood 
to  be  characteristic  of  a  low-grade  civilization  and  should 
be  avoided  whenever  possible.  In  essence  it  is  a  threat 
aimed  at  certain  supposed  evil  tendencies  in  human 
nature.  The  doctrine  of  innate  human  depravity  is  not 
so  popular  as  formerly,  and  the  question  arises  whether 
threats  of  punishment  are  really  efficacious  in  preventing 

7  See  Man  versus  the  State.     Also   discussion  of   this  topic  in 
Ritchie,  Principles  of  State  Interference. 


DEVELOPMENT  OF  LAWMAKING  263 

crime.  Admitting  that  prohibition  and  threat  are  neces- 
sary under  present  conditions  and  will  remain  so  for 
generations,  yet  it  should  be  assumed  that  such  laws 
relatively  should  decrease,  not  increase  in  number  with 
advancing  civilization. 

Persons  are  more  easily  influenced  to  do  right  than  in- 
timidated from  wrong  and  this  becomes  increasingly  so 
with  social  progress.  Preventive,  probative,  and  reform- 
ative methods  are  wiser  and  cheaper  in  the  long  run 
than  punitive.  The  great  maker  of  criminals  is  not 
defective  human  nature  so  much  as  vicious  home  life, 
squalid  poverty  among  the  illiterate  and  the  unskilled,  the 
lack  of  hope  for  the  future,  and  unwise  legislation.8 
Legislators  should  study  the  principles  of  horticulture 
and  stirpiculture  as  worked  out  in  eugenics,  and  make 
applications  of  these  to  the  development  of  racial  stock. 

There  are  immense  possibilities  of  achievement,  inher- 
ent in  a  national  stock,  unutilized  or  ruined  through  mis- 
direction. The  most  shocking  waste  of  national  re- 
sources is  the  waste  of  human  energy.  Legislators 
should  become  constructive  and  through  a  study  of 
human  behavior  and  social  control  should  develop  a  real 
educational  system  that  would  stimulate  and  direct 
human  energy  into  socially  advantageous  directions. 
Inimical  unsocial  conditions  should  be  so  readjusted  as 
to  assist  in  the  fostering  of  right  habits  and  of  a  social 
patriotism  founded  on  an  appreciation  of  the  uplifting 
environment  supplied  by  the  nation  to  its  people.  Evil 
tendencies  will  thereby  atrophy  from  disuse.  Self- 
respect,  honor,  reverence  for  law  and  virtue,  and  kindred 
attitudes  of  mind  can  be  developed  and  relied  on  under 

8  Note,   for  illustrations,   Carnegie  Foundation  Report,   1919,  by 
R.  H.  Smith,  Justice  and  the  Poor. 


264      THE  STATE  AND  GOVERNMENT 

a  right  environment  far  more  easily  than  motives  based 
on  fear  and  intimidation. 

The  principle  of  self-interest  also  can  be  appealed  to  in 
such  a  way  as  to  foster  respect  for  law,  not  disregard 
for  it.  Ideally  law  should  be  so  wisely  drawn  that  men 
prefer  to  obey  rather  than  to  disobey.  The  American 
draft  laws  of  1917  were  so  carefully  explained  and  dis- 
cussed in  advance  that  practically  all  opposition  ceased 
and  the  young  men  of  the  country,  with  very  few  excep- 
tions, cheerfully  enrolled  their  names  for  military  service. 
The  probation  system  of  treatment  for  juveniles  and 
first  offenders,  if  carefully  handled  by  trained,  well-paid 
probation  officers  of  good  character,  would  cut  crime 
rates  one-half  at  least,  and  much  more  if  economic  and 
social  conditions  were  favorable.  In  economic  life  the 
former  coercive  attitude  of  the  employer  has  proven 
unprofitable  and  far  better  results  are  obtained  when  both 
sides  meet  face  to  face  and  discuss  differences  with  a 
mutual  desire  to  get  together.  Arbitration,  conciliation, 
joint  agreements,  the  capacity  to  see  the  other  man's 
point  of  view,  these  are  signs  pointing  to  a  new  attitude 
in  economic  life  and  point  the  way  to  a  social  theory  of 
law.9 

Illustrations  of  Scientific  Legislation. — The  begin- 
nings of  such  legislation  have  already  been  made  and 
illustrations  are  numerous.  The  necessity  of  raising 
taxes  without  too  much  friction  has  sharpened  legisla- 
tive ingenuity  and  developed  such  devices  as  the  in- 
heritance tax,  the  many  forms  of  income  and  corporation 
taxes,  the  heavy  indirect  tax  on  the  importations  of  luxu- 

'Note  carefully  the  Report  to  President  Wilson  made  (1920) 
by  the  Interchurch  Commission  on  the  Steel  Strike  of  1919;  a 
synopsis  may  be  seen  in  the  Survey,  August  2,  1920. 


DEVELOPMENT  OF  LAWMAKING  265 

ries,  and  the  slight  rebate  sometimes  made  for  the 
prompt  payment  of  taxes,  accompanied  by  an  additional 
charge  for  failure  to  pay  when  due.  If  illegitimacy  is 
common  through  the  heavy  expense  of  a  formal  religious 
marriage,  as  in  Latin- America,  the  legalization  of  mar- 
riage through  civil  ceremony  at  nominal  cost  largely 
reduces  the  per  cent,  just  as  a  wise  divorce  law  proves 
to  be  a  great  aid  in  social  morals.  The  American  device 
of  reducing  the  cost  and  difficulty  of  securing  a  patent 
stimulated  enormously  the  latent  capacity  for  invention. 
The  reduction  of  the  cost  of  postage  is  a  well  known 
instance  of  an  aid  to  commercial  and  industrial  expan- 
sion, and  many  governments  stimulate  local  administra- 
tive efficiency  by  offering  to  pay  part  of  the  expense  if  a 
set  standard  is  maintained.10 

These  and  many  other  illustrations  that  might  be  sug- 
gested point  to  a  trend  in  legislation  when  lawmaking 
will  cease  to  be  the  crude  social  instrument  it  is  at  present 
and  will  become  the  great  agency  through  which  a  nation 
will  wisely  direct  the  energy  of  its  people  for  the  up- 
building of  national  achievement.  Plato  said n  that 
perfect  government  would  come  when  wise  men  legis- 
late or  legislators  become  wise.  An  unintelligent 
democracy  is  like  a  rudderless  ship,  for  scientific  gov- 
ernment above  all  things  requires  an  intelligent  public 
opinion;  but  this  condition  depends  on  the  growth  of 
general  scientific  knowledge,  political  intelligence,  and 
civic  patriotism. 

Legality  of  Legislation. — When  legislation  has 
been  passed  by  a  lawmaking  body  and  sanctioned  by  the 

10  England,  for  example. 

1  "States  will  prosper  when  kings  become  philosophers,  or 
philosophers  kings." 


266      THE  STATE  AND  GOVERNMENT 

executive,  its  provisions  presumably  must  be  observed 
throughout  the  state.  But  such  legislation  may  be  in  vio- 
lation of  the  letter  and  spirit  of  the  constitution.  Under 
such  conditions  a  department  of  government  or  a  citizen 
conceivably  might  refuse  to  enforce  or  to  obey  the  law. 
Government  would  soon  become  a  farce  unless  conflicting 
interpretations  could  be  settled.  The  constitution  may  it- 
self specify  what  department  shall  finally  decide  on  the 
legality  of  a  law;  but,  failing  that,  in  autocratic  monarch- 
ies whatever  the  king  sanctions  is  the  law  and  must  be 
enforced  and  obeyed.  In  constitutional  monarchies  the 
will  of  the  legislature,  approved  or  even,  perhaps,  if  dis- 
approved by  the  king,  is  the  deciding  factor.  In  the 
United  States  of  America,  however,  both  the  legislative 
and  executive  departments  may  agree  as  to  the  legality  of 
a  law  and  yet  when  it  is  brought  before  the  courts  as  the 
law  bearing  on  a  case  it  may  be  decided  to  be  unconstitu- 
tional and  hence  null  and  void.  By  custom  the  decision 
of  a  supreme  court  is  generally  accepted  as  final  and  is 
usually  followed  by  the  other  two  departments  of  govern- 
ment.12 This  enormous  power  placed  in  the  hands  of 
the  American  judiciary  is  justified  only  by  the  promi- 
nence of  the  judiciary  in  the  British-American  systems 
and  the  confidence  felt  in  the  impartiality  of  its  decisions. 
The  system  is  not  imitated  by  other  states,  which  prefer 
to  rely  on  the  final  interpretations  made  by  either  the 
executive  or  the  legislative  departments. 

"The  executive,  however,  has  on  several  occasions  ignored  such 
decisions  and  enforced  its  own  interpretation  of  the  constitution. 
See,  for  discussion  of  this  point,  Willoughby,  The  Supreme  Court, 
Chap.  VII. 


CHAPTER  XVII 

CLASSIFICATION  OF  LAW 

The  Meaning  of  Law. — If  the  state  finds  its  origin 
in  the  war  band,  then  the  notion  of  law  will  be  found  in 
the  command  or  order  proceeding  from  the  chief  or 
chiefs  in  authority.  A  command  by  implication  involves 
the  notion  of  enforcement  in  some  form  or  other,  that  is, 
it  has  a  sanction.  Furthermore,  it  is  a  command  given 
to  the  group  as  a  whole,  a  general  or  public  command, 
having  in  view  the  welfare  of  the  group.  Lastly  the 
members  of  the  band  or  group  recognize  the  utility  of 
obedience  to  the  command,  realizing  that  safety  is  in- 
volved in  harmonious  action,  under  the  leadership  of 
those  who  admittedly  are  best  able  to  decide  on  the  policy 
that  should  be  followed. 

In  the  same  fashion  in  the  modern  state  there  is  a 
recognition  of  unity,  of  common  interests  and  safety, 
and  of  the  necessity  of  wise  leaders  authorized  to  voice 
the  general  will  by  enunciating  commands  having  sanc- 
tions, commands  that  will  be  enforced,  if  needful,  by  the 
power  and  authority  of  the  entire  body  politic.  This 
power  of  command  and  enforcement  is  naturally  best 
illustrated  when  the  state  performs  its  original  function 
of  warring  in  behalf  of  national  safety.  At  such  times 
unanimity  of  action  is  demanded  and  there  is  no  time  for 
lengthy  discussions  of  individual  rights  or  legal  prece- 
dents. The  command  may  be  a  demand  for  conscription 

267 


268      THE  STATE  AND  GOVERNMENT 

for  military  service,  or  the  surrender  of  home  and  prop- 
erty, or  the  seizure  of  foods  and  clothing,  but  whatever 
it  be,  disobedience  is  followed  by  prompt  and  stern  pun- 
ishment under  military,  or  martial,  law,  since  the  general 
safety  requires  the  obedience  of  all. 

Social  Customs. — It  will  be  recalled  that  in  society 
as  a  whole  there  are  many  social  governmental  organi- 
zations having  their  own  social  authorities  and  their  cus- 
tomary laws  or  rules,  and  that  these  ordinarily  live  their 
apparently  independent  lives  under  the  protection  of  the 
state.  In  time  of  war  these  also  come  under  the  com- 
mand of  the  state,  forgoing  their  usual  freedom  and  be- 
coming subject  to  political  law,  as  far  as  may  be  deemed 
necessary  for  public  safety.  In  other  words,  the  actual 
sphere  of  governmental  activity  enlarges  considerably  in 
times  of  national  danger,  resuming  its  normal  field  when 
once  peace  is  fully  restored. 

When  Social  Custom  Becomes  Law. — Even  in 
times  of  peace  there  is  an  approximation  to  this  situation 
for  there  has  been  a  steady  encroachment  of  the  state  on 
the  functions  usually  exercised  by  social  agencies.  With 
growth  in  civilization  the  function  of  the  state  passes  be- 
yond the  mere  preservation  of  life  and  property  and 
broadens  into  the  aim  of  general  welfare.  In  doing  so, 
however,  it  must  trespass  on  or  interfere,  so  to  speak, 
with  the  jurisdiction  of  social  authorities  by  taking 
charge  of  the  customs  and  rules  enforced  by  the  super- 
seded authorities  and  giving  them  henceforth  the  sanction 
of  the  state.  Once  a  social  custom  ceases  to  be  merely 
social  and  has  behind  it  a  political  sanction  it  becomes 
law  and  in  theory  may  be  assumed  to  have  been  law  from 
the  beginning  and  from  that  time  forth  to  be  commanded 
by  the  state.  Social  customs  in  themselves  are  not  law, 


CLASSIFICATION  OF  LAW  269 

but  whenever  any  such  customs  are  adopted,  as  it  were, 
by  the  state,  they  become  because  of  that  fact  political 
and  their  enforcement  becomes  a  matter  of  governmental 
obligation. 

The  theory  of  sovereignty  implies,  it  will  be  remem- 
bered, that  the  state  has  supreme  authority  over  the 
whole  of  society,  but  that  in  practice  the  government  has 
limitations  placed  on  it  since  there  are  many  powers  "re- 
served to  the  people."  Yet  as  already  explained,  when 
the  need  arises,  whether  in  war  or  peace,  the  sphere  of 
governmental  authority  is  extended,  under  the  war  power 
in  time  of  war,  or  in  times  of  peace  by  a  broadening  of 
the  police  power  by  interpretation,  or  by  a  change  in  the 
fundamental  law  authorizing  the  change.  A  recent  illus- 
tration of  this  sort  may  be  found  in  the  prohibition  of 
the  manufacture  and  sale  of  liquors  in  the  United  States. 
Before  1917  persons  might  under  regulation  manufac- 
ture or  sell  liquors  without  legal  condemnation,  but  in 
the  midst  of  the  War  prohibition  was  ordered  as  a  war 
measure  and  this  was  followed  by  the  adoption  of  the 
Eighteenth  Amendment  to  the  national  Constitution, 
whereby  henceforth  it  became  criminal  to  do  what  for- 
merly had  been  permissible.  This  important  change 
rudely  shocks  the  minds  of  many  who  cannot  readily  see 
how  a  socially  endorsed  custom  of  long  standing  becomes 
over  night  a  legally  prohibited  act.  It  is  a  vigorous  in- 
stance, however,  of  a  process  of  many  centuries — the 
slow  transference  of  social  sanction  to  political  authority, 
the  intrusion  of  law  over  social  custom,  this  making  an 
added  political  function. 

If  this  explanation  be  kept  clearly  in  mind,  one  may 
be  prepared  to  define  law  as  command,  even  though  many 
laws  have  an  origin  in  socia^  custom,  and  law  may  be  de- 


270      THE  STATE  AND  GOVERNMENT 

fined,  therefore,  as  the  will  of  the  state,  formulated  in 
commands  whether  written  or  unwritten  or  in  customs 
having  a  legal  sanction,  and  enforced  by  the  sovereign 
power  of  the  state. 

Friction  in  Law. — If  all  law  were  purely  social  cus- 
tom, violations  would  be  few  and  punishment  rare.  But 
customs  may  be  artificial  or  forced  and  these  complicate 
the  situation  by  introducing  friction  and  discord  in  at- 
tempts to  enforce  law. 

1.  Civilization,   for  example,  has  been  marked  by  a 
constant  series  of  wars  and  conquests.     Conquerors  and 
conquered  settle  down  in  the  same  community  as  rulers 
and  ruled.     Their  differing  customs  clash  and  compel 
ultimate  compromise,  but  meanwhile  the  dominant  race 
enforces  what  seems  to  the  conquered  to  be  a  harsh  and 
arbitrary  law,  which  they  hate  and  violate  whenever  pos- 
sible. 

2.  Again,  the  development  of  private  property  in  land 
and  personal  forms  of  wealth,  supplementing  the  earlier 
systems  of  communal  ownership,  multiplied  enormously 
the  possibilities  of  disobedience  to  law.    Social  philoso- 
phers have  tended  to  decry  private  property  as  the  root 
of  all  evil ;  Plato  in  his  Republic  and  Sir  Thomas  More, 
in  his  Utopia,  for  instance,  charge  to  its  existence  nearly 
all  the  evils  of  social  life.     It  is  certainly  hard  to  find  a 
sound  ethical  basis  for  the  extremes  of  wealth — excessive 
riches   and  abject   poverty.      Many   persons,   therefore, 
have  always  found  it  easy  to  justify  to  themselves  theft 
and  robbery.    This  is  as  true  to-day  as  it  ever  was.    The 
largest  part  of  criminal  law  is  aimed  at  such  crimes,  and 
much  social  friction  arises  in  consequence. 

3.  In  the  third  place,  society,  through  the  institution 
of   private  property,   has   regularly   tended   to  develop 


CLASSIFICATION  OF  LAW  271 

classes,  superior  and  inferior,  governing  and  governed. 
The  class  in  possession  of  governmental  power  naturally 
arranges  the  social  and  economic  system  chiefly  to  suit 
its  own  interests,  and  seeks  to  compel  obedience  to  its 
mandates  even  by  harsh  measures  if  necessary.  Class 
legislation,  therefore,  giving  special  privileges  to  a  fav- 
ored part  of  the  community,  is  obnoxious  to  the  others, 
who  violate  its  injunctions  without  compunction  when- 
ever possible. 

4.  Lastly,  legislation  by  lawmaking  bodies  has  not  al- 
ways been  wise  and  judicious.  It  may  be  too  paternal, 
may  interfere  too  much  with  personal  comforts  and 
rights,  and  may  irritate  by  petty  requirements  and  over- 
officiousness  so  as  to  create  a  contempt  for  the  law  and  a 
willingness  to  break  it  whenever  convenient. 

Ignorance  of  the  Law. — To  the  governed,  an  aggra- 
vation of  the  legal  system  lay  in  the  fact  that  for  long 
periods  a  knowledge  of  the  law  and  of  its  procedure  was 
considered  to  be  a  privilege  of  the  ruling  class,  who 
thereby  were  able  to  hold  hidden  terrors  over  their  un- 
willing inferiors.  The  history  of  the  Ten  Tables  of 
Roman  law  illustrates  this  point,  since  they  were  pub- 
lished so  as  to  satisfy  a  rebellious  spirit  on  the  part  of 
the  masses  of  the  people.  The  injustice  of  inflicting 
penalty  on  those  ignorant  of  the  law  is  obvious.  Igno- 
rance of  the  law  should  excuse  no  one  provided  the  law 
may  be  known,  but  if  ignorance  is  compulsory  we  feel 
that  it  should  excuse.  For  this  reason  civilized  com- 
munities have  regularly  demanded  that  enforceable  law 
be  proclaimed.  The  demand  "That  every  man  may 
know  the  law"1  has  been  satisfied  in  most  modern  states, 

1Npte,  for  example,  the  explanation  in  Edward  Jenks,  Law  and 
Politics  in  the  Middle  Ages,  pp.0io-ii. 


272      THE  STATE  AND  GOVERNMENT 

even  though  the  complexity  of  law  and  legal  procedure 
is  such  that  few  men  can  understand  it  when  announced. 
A  favorite  dream  of  social  Utopians  has  been  that  law 
be  made  so  simple  that  even  the  unlearned  man  may  un- 
derstand.2 That  reform  is  still  for  the  future. 

Older  Forms  of  Law :  Treason. — The  customs  that 
first  passed  into  law  were  probably  those  concerned  with 
crime  against  the  community  as  a  whole,  the  beginnings 
of  modern  treason  laws.  A  law  against  treason  is  pri- 
marily based  on  the  notion  of  service  owed  to  a  com- 
munity by  its  members,  or  on  the  allegiance  due  from  a 
subject  to  a  ruler.  Law  against  treason  in  some  form 
or  other  is  found  even  in  crude  and  primitive  communi- 
ties. Severe  penalty  was  inflicted  on  those  who  failed  in 
military  service  or  obedience,  or  who  conspired  against 
the  community  or  its  head.  As  kingship  developed,  trea- 
son became  personal.  It  was  a  crime  against  the  head  as 
the  embodiment  of  the  state.  When  kingship  was  hedged 
about  with  the  notions  of  divinity,  it  became  not  simply 
traitorous  but  impious  to  lay  hands  on  the  "Lord's 
anointed/'  and  spiritual  as  well  as  temporal  punishment 
was  meted  out  to  the  offender.  Torture,  confiscation  of 
property,  corruption  of  blood,  and  ecclesiastical  censures 
were  rigorously  inflicted  on  malcontents.  The  idea  of 
treason  was  extended  so  as  to  protect  members  of  the 
king's  family  or  his  chief  officers,  and  so  as  to  include 
even  words  or  criticism  that  might  seem  to  imply  hos- 
tility to  the  king  and  his  government.3 

In  modern  states,  as  autocracy  and  the  divinity  of 

8  See,  for  illustrations,  More's  Utopia,  p.  135  (Morley  edition), 
and  Gardiner,  Constitutional  Documents  of  the  Puritan  Revolu- 
tion, p.  240,  Section  6. 

'See,  for  example,  Feilden,  A  Short  Constitutional  History  of 
England,  pp.  3-7. 


CLASSIFICATION  OF  LAW  273 

kingship  become  obsolete,  treason  consists  in  action 
against  the  state  as  well  as  against  the  king.  Punishment 
of  the  latter  class  of  offenses  becomes  more  humane  as 
kings  lose  their  importance  in  the  political  system.  In 
republics  treason  against  the  head  of  the  state  or  his 
officers  is  rarely  recognized  as  a  special  crime;  offenses  of 
that  sort  are  treated  under  ordinary  criminal  law.  Trea- 
son now  is  a  crime  only  when  directed  against  the  state. 
Furthermore,  as  freedom  of  speech  is  essential  to  de- 
mocracies, the  tendency  is  to  consider  as  treason  only 
armed  rebellion  and  not  criticism  of  the  government  or 
its  officials.  These  several  varieties  of  treason  laws  can 
easily  be  illustrated  by  comparing  the  systems  in  states 
differing  in  political  development,  such  as  Japan,  Ger- 
many, Great  Britain,  Switzerland,  and  the  United  States 
of  America. 

The  Law  of  the  Land. — It  is  obvious  that  in  any 
society  there  will  develop  set  and  customary  ways  of  car- 
rying on  social  activities.  Persons  soon  realize  that  time 
is  saved  and  friction  avoided  by  conforming  their  actions 
to  social  standards  and  routine.  Such  customs  develop 
in  all  ages  and  in  all  kinds  of  social  life,  whether  eco- 
nomic, domestic,  or  religious.  They  form  a  sort  of  un- 
written code,  enforced  by  parental  and  ecclesiastical 
authority  or  by  the  pressure  of  public  opinion.  Some  of 
these  customs,  however,  may  become  so  important  for 
general  welfare  that  stronger  pressure  than  social  au- 
thority or  opinion  must  be  brought  to  bear  on  those  mem- 
bers of  the  community  who  incline  to  acts  in  violation 
of  social  standards.  Whenever  a  community  in  its  col- 
lective capacity,  presumably  acting  through  its  body  of 
elders,  its  government,  undertakes  to  apply  such  pres- 
sure, by  fixing  penalty  for  violation,  then  such  customs 


274      THE  STATE  AND  GOVERNMENT 

cease  to  be  purely  social  and  become  political.  In  other 
words  they  become  the  law  of  the  land.  'Customs  thus 
sanctioned  by  the  state,  as  shown  by  the  decisions  of 
courts,  the  acquiescence  of  the  other  branches  of  govern- 
ment, and  the  body  of  citizens,  are  virtually  commands, 
ordering  or  prohibiting  certain  actions,  and  disobedience 
is  followed  by  the  infliction  of  a  penalty  fixed  by  the 
governing  body  of  the  community.  As  the  sphere  of 
governmental  activity  widens,  other  social  customs  be- 
come of  general  importance,  enforceable  under  penalty 
by  the  state.  Throughout  the  entire  history  of  the  state, 
laws  have  developed  in  this  manner  from  customs,  which 
are  at  first  largely  personal  and  local;  some  in  process  of 
time  develop  general  importance,  and  when  really  essen- 
tial, are  enforced  through  government  for  the  sake  of  the 
general  welfare.  It  was  in  this  fashion  that  England  de- 
veloped its  common  law,  the  rival  of  Roman  law  for 
world  supremacy,  the  unwritten  law  of  England,  deriv- 
ing its  binding  force  from  immemorial  usage,  as  ascer- 
tained and  expressed  through  the  decisions  of  the 
common  law  courts. 

Roman  Law. — Roman  law,  it  will  be  remembered, 
had  been  built  up  on  the  basis  of  the  Twelve  Tables,  by 
edict  of  praetor,  the  commentaries  of  learned  jurists,  and 
the  decrees  of  emperors,  until  when  codified  by  Justinian 
it  became  the  great  code  of  the  civil  law,  even  yet  the 
foundation  and  inspiration  of  European  Continental 
codes,  supplying  to  all  systems  of  law  many  legal  prin- 
ciples of  permanent  value.  The  term  civil  law  is  used 
in  general  as  applied  to  Roman  law,  along  with  the  modi- 
fications of  it  made  by  the  various  states  that  have  based 
their  legal  systems  on  the  principles  of  Roman  law.  The 
term,  however,  is  often  applied,  in  the  United  States,  to 


CLASSIFICATION  OF  LAW  275 

that  part  of  municipal  or  internal  law  which  is  not  crim- 
inal law. 

Equity  Law. — In  the  development  of  British- 
American  law  an  important  distinction  has  arisen  be- 
tween common  and  equity  law.  A  decision  based  on 
custom  may  prove  to  be  in  itself  unjust.  A  moral  or 
just  custom  of  one  age  may  prove  to  be  the  reverse  a  few 
generations  later.  If  a  state  aims  to  secure  justice,  it 
may  rectify  unjust  decisions  by  authorizing  some  per- 
son, as  the  king,  to  correct  the  error  in  a  particular  case. 
This  is  the  basis  of  the  pardoning  power  of  the  executive, 
who  by  its  exercise  may  temper  justice  with  mercy,  or 
at  any  rate  with  expediency.  A  special  form  of  this 
power  developed  in  England  when  the  King  authorized 
the  Lord  Chancellor,  who  in  those  days  was  regularly  an 
ecclesiastic  and  the  King's  spiritual  adviser,  to  soften 
the  rigors  and  to  amend  the  defects  of  the  common  law 
by  the  introduction  of  equitable  principles.  These  he 
derived  from  his  knowledge  of  Roman  and  canon  law 
and  classic  philosophy.  From  these  there  developed  a 
system  of  equity  law,  which  for  centuries  flourished  side 
by  side  with  the  common  or  customary  law  of  the  land. 
As  the  decisions  or  orders  of  equity  courts  are  in  effect 
orders  of  the  king  or  executive,  they  are  technically 
known  as  decrees,  not  as  decisions.  These  two  systems 
of  law,  with  their  separate  courts  and  procedure,  are 
slowly  amalgamating,  and  in  certain  of  the  common- 
wealths of  the  United  States  of  America  have  been 
merged  into  one  definite  system. 

Criminal  Law. — Acts  of  violence  and  theft,  as 
already  explained,4  were  long  considered  to  be  private 
matters,  of  no  concern  to  the  state,  and  were  settled  in 
4  See  Chapter  VI. 


276      THE  STATE  AND  GOVERNMENT 

accordance  with  the  social  customs  of  the  community. 
Regulation,  therefore,  was  social,  domestic,  religious, 
but  not  political.  As  the  state  began  to  enlarge  its  im- 
portance and  to  regulate  all  disputes  that  tended  to  dis- 
turb the  peace  of  the  community,  necessarily  it  had  to 
adopt  a  system  of  law  as  the  basal  principles  for  deci- 
sions. The  customs  of  the  community  based  on  primi- 
tive customs  and  prohibitions  (the  tabu)  supplied  such 
a  system  subject  to  such  modifications  as  from  time  to 
time  became  necessary.  In  this  way  developed  ordinary 
criminal  law,  which  names  the  various  prohibitions  en- 
forced by  the  state,  and  specifies  the  penalties  to  be  in- 
flicted in  case  of  violation  of  the  law. 

Civil  Law. — In  the  same  manner  developed  rules 
and  regulations  in  regard  to  property  rights.  When 
property  became  private,  not  communal,  regulation  of 
rights  became  increasingly  important.  Disputes  in  re- 
gard to  ownership  often  led  to  violence,  and  in  its  func- 
tion as  the  guarantor  of  peace,  the  state  had  to  assume  an 
increasingly  larger  share  in  the  settlement  of  disputes  in 
regard  to  property  rights.  This  jurisdiction,  however, 
is  not  so  marked  as  that  exercised  in  criminal  matters. 
In  the  event  of  crime  the  state  assumes  charge  of  the 
matter  and  treats  the  offense  as  one  committed  against 
the  entire  community.  The  state  prosecutes,  not  the  in- 
jured person,  and  the  state  bears  the  expense  of  investi- 
gation and  inflicts  the  penalty.  A  civil  case,  on  the  other 
hand,  is  in  form  private.  It  is  a  dispute  between  indi- 
viduals, who  voluntarily  bring  their  contention  before  a 
civil  court  as  an  umpire,  seeking  rights  and  remedies. 
The  court  decides  in  accordance  with  well  established 
law  and  enforces  its  decision  at  the  expense  of  the  par- 
ties concerned. 


CLASSIFICATION  OF  LAW  277 

Social  Customs  that  Became  Law. — Among  social 
customs  that  in  due  time  became  political  five  may  be 
mentioned  as  illustrations. 

1.  The  Law  Merchant. — The  law  merchant,  or  modern 
commercial  law,  a  system  of  rules  regulating  trade  and 
commerce,  and  enlarged  by  judicial  interpretation  and 
legislative  enactment. 

2.  Maritime  Law. — Maritime  law,  formerly  a  branch  of 
the  law  merchant,  regulating  shipping,  seamen,  and  navi- 
gation, and  now  included  generally  under  admiralty  juris- 
diction, which  deals  with  cases,  civil  and  criminal,  that 
arise  in  connection  with  commerce  on  the  high  seas  and 
prize  cases  in  time  of  war.    Obviously,  customs  arising 
on  land  could  hardly  apply  to  such  matters,  and  a  system 
of  law  has  been  developed  from  principles  of  ancient 
maritime  codes,  Roman  law,  and  analogies  derived  from 
common  law. 

3.  Canon   Law. — When   the   church   played   an   im- 
portant part  in  political  life,  and  had  jurisdiction  over 
many  matters  now  exercised  by  the  state,  it  evolved  from 
custom  certain  rules  and  principles  that  became  the  basis 
of  an  ecclesiastical  law.     Such  law  is  still  politically  im- 
portant in  those  states  closely  identified  with  the  church. 
The  Christian  church  in  its  connection  with  the  Roman 
empire  worked  out,  largely  from  Roman  law,  canon  law, 
regulating   ecclesiastical   polity   and   activity.      The   in- 
fluence of  this  law  is  still  felt  in  such  functions  as  have 
passed  from  ecclesiastical  to  political  control,  as,  for  in- 
stance, marriage,  divorce,  and  relationships.    Canon  law 
itself  has  at  the  present  time  small  political  importance. 

4.  International    Law. — In    one     sense    the    whole 
world  may  be  considered  as  a  sort  of  society  in  which  the 
states  as  individuals  are  supposed  to  live  in  social  rela- 


278      THE  STATE  AND  GOVERNMENT 

tions  and  to  develop  customs.  Unfortunately  states  in 
their  intercourse  one  with  another  have  too  often  lived 
in  a  condition  of  continuous  war,  the  only  peace  being 
that  which  follows  devastation  and  conquest.  But  civi- 
lized states  prefer  peace,  and  in  the  pursuit  of  it  have  de- 
veloped a  system  of  rules  and  regulations  known  as  inter- 
national law.5  This  is  not  law  in  the  sense  that  it  is 
enforceable  by  the  state  except  in  so  far  as  any  given 
state  adopts  certain  principles  of  it  as  domestic  law.6  It 
is  a  collection  of  customs,  ethical  standards,  and  rules 
agreed  on  by  general  consent.  Its  chief  principles  are 
founded  on  the  practices  of  great  states,  and  enforcement 
depends  on  the  pressure  of  opinion  and  the  fear  of  war 
in  case  of  violation.  Its  modern  development  dates  from 
the  time  of  Grotius  (1583-1645),  who,  in  his  De  Jure 
Belli  ac  Pads,  set  forth  its  principles,  derived  from 
analogies  in  Roman  and  natural  law,  and  from  the  prac- 
tices of  nations. 

5.  Natural  Law. — The  term  natural  law  is  still 
more  remote  from  the  notion  of  law  as  command  of  the 
state.  It  is  a  term  common  in  ancient  and  mediaeval 
philosophies  and  ethics  emphasizing  ideal  teachings  in 
respect  to  human  relationships  and  considered  as  estab- 
lished by  the  gods,  or  thought  out  by  wise  men.  These 
ideals  embody  basal  principles  of  eternal  right  and  jus- 
tice, and  unitedly  make  a  sort  of  universal  code  towards 
the  perfection  of  which  all  human  codes  were  in  duty 
bound  to  approximate.  These  ideals,  of  course,  are  cus- 
tom in  the  sense  that  they  were  supposed  to  be  the  prin- 

5  The  contrasting  term  to  international  law  is  municipal,  internal, 
or  positive  law,  which  is  the  law  of  the  land,  enforced  by  sovereign 
authority  and  determining  all  questions  of  public  or  private  right 
arising  within  the  jurisdiction  of  any  given  state. 

6  See  page  72. 


CLASSIFICATION  OF  LAW  279 

ciples  of  conduct  observed  by  the  gods  and  by  some  also 
were  supposed  to  have  been  actually  in  practice  among 
men  in  the  so-called  state  of  nature  or  golden  age  of 
man,  before  evil  and  discord  became  known. 

The  Decree  or  Ordinance. — In  considering  law  as 
command  it  will  be  remembered  that  such  law  naturally 
emanates  from  the  executive,  and  in  due  time  passes  to  a 
legislative  body  as  the  specialized  maker  of  laws.  The 
several  aspects  of  law  considered  as  common  and  will 
briefly  be  explained. 

An  important  historic  form  of  law  is  the  edict,  or 
decree,  and  the  ordinance.  These  are  supplementary  to 
the  law  of  the  land  and  are  formulated  through  the 
executive  and  the  departments  of  administration.  If  in 
a  state  there  is  no  lawmaking  body,  the  power  of  the 
executive  to  issue  edicts,  decrees,  or  ordinances  is  most 
important,  supplying  as  it  does  the  place  of  the  legisla- 
ture. The  edict  or  decree  is  a  command  issued  by  the 
supreme  authority,  that  is,  the  king  or  emperor. 

The  ordinance  properly  is  a  rule  or  regulation  laid 
down  for  the  guidance  of  the  several  branches  of  admin- 
istration. The  chief  aspect  of  this  is  the  law  regulating 
those  who  serve  in  the  army  and  navy.  It  is  a  form  of 
administrative  law  and  applies  ordinarily  to  those  only 
who  are  actively  engaged  in  military  and  naval  service. 
Yet  in  times  of  war  or  insurrection,  the  provisions  of 
the  civil  law  may  be  suspended  as  far  as  is  necessary, 
and  the  more  expeditious  rules  of  the  war  organization 
employed  so  as  to  secure  the  peace  and  safety  of  the  state. 
The  method  by  which  this  may  be  done  is  set  forth  in 
the  ordinary  law. 

The  state,  besides  employing  the  services  of  those  in 
the  army  and  navy,  has  many  persons  engaged  in  the 


280      THE  STATE  AND  GOVERNMENT 

ordinary  administration  of  governmental  affairs.  These 
unitedly  make  up  the  civil  service,  as  distinguished  from 
the  military  and  naval  service.  The  rules  and  regula- 
tions governing  the  organization  and  powers  of  the  civil 
service  form  the  administrative  law.  This  division  of 
law  is  not  highly  developed  in  British-American  systems, 
but  has  attained  a  much  higher  development  in  the  states 
of  Continental  Europe.7  In  France,  for  instance,  where 
this  law  has  reached  its  fullest  development,  there  is  a 
special  series  of  administrative  courts,  independent  of  the 
civil  courts,  having  jurisdiction  broadly  of  all  cases  in- 
volving acts  of  officials  of  the  civil  service,  and  cases 
arising  under  administrative  law.  The  argument  in 
favor  of  such  a  system  is  that  it  insures  a  more  scientific, 
expeditious,  and  impartial  decision  than  would  result  if 
the  case  were  intrusted  to  the  ordinary  courts.  In  the 
British-American  system  there  are  special  courts  for  the 
consideration  of  administrative  disputes,  but  their  de- 
cisions are  subject  to  revision  by  the  civil  courts,  which 
also  have  jurisdiction  over  civil  officers. 

Legislative  Ordinances. — Another  aspect  of  the 
ordinance  arises  in  connection  with  legislative  lawmak- 
ing.  In  statutory  legislation  no  law  can  fully  cover  all 
possible  details,  and  hence  there  regularly  rests  in  the 
administration  the  power  to  make  supplementary  rules 
and  regulations  for  the  guidance  of  the  several  adminis- 
trative departments.  These  rules  are  readily  changed 
or  modified  to  suit  conditions.  They  are  the  by-laws  of 
social  organizations.  The  ordinance  power  of  admin- 
istrative departments  is  always  large,  but  is  especially 

TFor  a  thorough  comparative  study  of  administrative  systems 
in  Europe,  see  Goodnow,  Comparative  Administrative  Law,  vol.  i. 
Organization,  and  vol.  ii,  Legal  Relations,  and  see  pages  201-213  of 
this  book. 


CLASSIFICATION  OF  LAW  281 

emphasized  in  states  not  of  the  British- American  type. 
Legislation  in  those  countries  is  expressed  in  a  concise 
and  terse  manner,  and  its  details  are  left  to  be  worked 
out  by  the  administration  under  the  guidance  of  the 
executive.  This  naturally  enlarges  greatly  the  impor- 
tance of  administrative  departments.  In  British-Ameri- 
can countries,  on  the  other  hand,  legislation  is  detailed 
and  verbose  to  the  last  degree,  in  that  the  legislature 
seeks  to  anticipate  every  possible  emergency.  The  ordi- 
nance power  of  the  administration  is  correspondingly 
reduced.  City  councils,  being  practically  administrative 
bodies,  issue  their  decisions  under  the  name  of  ordi- 
nances, and  since  cities  are  known  as  municipalities,  these 
ordinances  are  frequently  referred  to  as  municipal  ordi- 
nances. 

The  Statute  and  the  Constitution. — The  rise  of  a 
separate  body  for  legislative  purposes  in  governmental 
systems  results  in  a  form  of  law  known  as  the  statute  or 
the  act.  Naturally  the  rise  of  the  parliamentary  or  legis- 
lative statute  proportionately  lessens  the  necessity  for 
executive  legislation  and  is  supposedly  a  step  in  the  di- 
rection of  democracy.  The  statute  is  presumed  always 
to  harmonize  with  the  fundamental,  or  constitutional, 
law,  applying  its  principles  to  the  changing  conditions  of 
political  life.  In  federations  there  will  be  a  dual  series 
of  statutes  or  acts :  those  of  the  national  lawmaking  body 
and  those  of  the  several  commonwealths  of  the  federated 
state. 

In  a  previous  chapter  (IX)  attention  was  called  to  the 
fact  that  every  state  has  a  body  of  fundamental  law, 
written  or  unwritten,  known  as  its  constitution,  and  this 
term  was  defined  and  explained.  Utopian  constitutions 
may  be  worked  out  by  social  philosophers  as  ideals  in 


282      THE  STATE  AND  GOVERNMENT 

political  development.  In  Greek  classic  times  philoso- 
phers not  infrequently  undertook  to  write  out  on  request, 
model  constitutions  for  particular  states;  and  Aristotle, 
in  preparation  for  his  famous  work  on  Politics  gathered 
together,  it  is  said,  the  constitutions  of  some  two  hun- 
dred states.  In  other  words,  he  had  prepared  for  him  a 
statement  of  the  fundamentals  of  the  governmental  sys- 
tems of  these  numerous,  but  for  the  most  part  petty,  city 
states.  Similarly  the  constitution  of  any  state  can  be 
studied  and  set  forth  by  any  competent  person  familiar 
with  the  political  system  of  the  state  in  question. 

The  written  constitution  is  a  really  important  develop- 
ment of  modern  times,  since  like  statutory  legislation  it 
seems  to  be  made  de  novo.  Many  of  its  provisions  will, 
in  fact,  be  based  on  the  fundamental  customs  of  former 
generations,  but  the  essential  point  is  that  a  special  body, 
a  constituent  assembly  8  or  a  constitutional  convention, 
devotes  itself  formally  to  the  formulation  of  a  law  which 
is  to  determine  governmental  organization  and  powers  in 
future  years.  It  is  the  high-water  mark  of  legislation 
and  a  great  achievement  from  the  standpoint  of  national 
progress. 

The  introduction  of  the  written  constitution  has,  how- 
ever, created  a  sort  of  confusion  in  law.  This  formal 
document  theoretically  contains  such  fundamentals  only 
as  should  be  found  in  constitutions.  In  fact,  however, 
for  reasons  unnecessary  to  explain  here,  written  consti- 
tutions seldom  if  ever  contain  all  the  fundamentals,  and 
may  embody  many  matters  of  minor  importance.  In  the 
United  States  of  America,  for  instance,  the  national  writ- 

8  This  term  properly  should  be  applied  to  a  parliament  or  ordi- 
nary lawmaking  body,  when  engaged  in  the  formulation  of  a 
constitution,  i.e.,  when  it  is  acting  as  a  constitutional  convention. 


CLASSIFICATION  OF  LAW  283 

ten  Constitution  would  give  an  intelligent  foreigner  a 
somewhat  vague  comprehension  of  our  constitutional  sys- 
tem. He  would  need  to  supplement  his  knowledge  by 
such  information  as  is  contained  in  Bryce9  and  in  some 
treatise  on  the  constitutional  law  of  the  land.  On  the 
other  hand,  if  he  desired  to  understand  the  constitutional 
system  of  one  of  the  commonwealths  by  a  study  of  its 
written  constitution,  he  would  be  overwhelmed  by  the 
mass  of  petty  detail  of  local  and  temporary  importance 
contained  in  most  of  these.  Yet  these  written,  formal 
documents,  from  the  legal  standpoint,  must  be  treated  as 
the  fundamental  law  of  the  state,  or  commonwealth,  with 
which  no  custom,  ordinance,  nor  statute  should  conflict. 
In  states,  therefore,  having  written  constitutions  there  is 
the  possibility,  and  even  the  necessity,  of  two  lines  of 
constitutional  study — namely,  (a)  the  study  of  the  writ- 
ten document  as  the  technical,  fundamental  law,  and  (&) 
the  study  of  the  constitution  as  it  really  is,  that  is,  made 
up  partly  from  the  written  and  partly  from  the  unwritten 
fundamental  law  of  the  land.  This  complication,  while 
unfortunate,  is,  after  all,  not  serious  in  practice.  Fa- 
miliarity with  the  notion  of  a  constitution  enables  one 
readily  to  add  to  the  written  document  whatever  is 
needed,  subtracting  from  it  at  the  same  time  whatever  is 
petty  and  local  in  character. 

Public  and  Private  Law. — There  is  an  important 
distinction  between  what  is  known  as  public  and  as  pri- 
vate law.  Whenever  the  interests  of  the  state  as  such 
are  involved,  the  law  bearing  on  such  interests  is  part 
of  the  public  law.  Whenever  the  interests  at  stake  are 
primarily  individual,  the  law  is  private  law.  Interna- 
tional law,  so  far  as  it  concerns  the  interests  of  states, 
8  The  American  Commonwealth. 


284      THE  STATE  AND  GOVERNMENT 

is  public;  but  so  far  as  it  concerns  the  interests  of  indi- 
viduals who  happen  to  be  subjects  of  different  states,  it 
is  private.  The  law  regulating  the  property  rights  of 
individuals  is  private;  but  criminal  law  is  a  branch  of 
public  law,  as  also  are  the  branches  of  administrative  and 
constitutional  law.  In  other  words,  public  law  is  that  in 
which  the  state  is  itself  directly  and  primarily  concerned, 
while  private  law  regulates  the  relations  of  individuals 
one  to  the  other.  A  distinction  is  sometimes  made  be- 
tween international  law,  which  is,  technically  speaking, 
not  law  but  custom,  and  that  law  which  affects  the  in- 
ternal interests  of  the  state.  This  is  often  referred  to  as 
municipal  law.  Municipal  public  law  and  municipal  pri- 
vate law  are  both  the  law  of  the  land  in  that  they  are 
both  sanctioned  and  enforced  by  the  state.  International 
public  law,  as  already  explained,  is  sanctioned  and  en- 
forced only  by  international  public  opinion,  guiding  it- 
self by  the  customs  and  precedents  of  states. 

The  Code  System. — A  common  law  system,  such 
as  that  employed  by  English-speaking  peoples,  is  based 
on  custom  as  determined  by  precedent  and  judicial  de- 
cision. Roman  law  in  its  development  was  also  a  com- 
mon law  system.  The  codification  of  Roman  law  under 
Justinian  suggested  to  modern  states  the  idea  that  the 
law  of  the  land  should  be  embodied  in  a  definite  code 
systematically  arranged  and  formally  written,  as  the 
final  authority  for  judicial  decisions.  The  respective 
merits  of  these  two  systems  of  law  are  still  a  matter  of 
debate,  one  important  distinction  being  that  judicial  de- 
cisions as  precedents  for  interpretation  are  minimized  in 
code  systems,  whereas  the  opposite  is  true  of  the  com- 
mon law  system.  The  code  system  is  in  use-  throughout 
the  civilized  world  except  in  British-American  countries. 


CLASSIFICATION  OF  LAW  285 

In  some  of  the  commonwealths  of  the  United  States  of 
America  there  are  approximations  to  the  use  of  a  code 
in  (a)  the  consolidated  statute,  that  is,  the  incorporation 
into  one  general  enactment  of  all  the  statutes  relating  to 
a  particular  branch  of  the  law,  and  (b)  in  the  codifica- 
tion of  particular  branches  of  public,  but  rarely  private, 
law. 


CHAPTER  XVIII 

THE  ELECTORATE 

Its  Early  Development. — In  primitive,  horde  life 
there  was  a  rude  sort  of  democracy.  Though  control  was 
practically  in  the  hands  of  the  elders,  yet  these  did  not 
form  an  hereditary  class.  Each  had  attained  the  honor 
through  merit  or  the  wisdom  of  age.  Every  young  man, 
so  to  speak,  had  in  possibility  a  ' 'marshal's  baton"  in  his 
grasp.  The  same  idea  holds  in  the  tribal  democracy  of 
pastoral  life.  A  nomadic,  warring  stage  of  existence  is 
not  suited  to  hereditary  aristocratic  government.  Power 
goes  to  the  one  who  best  can  wield  it  and  is  retained  only 
so  long  as  he  can  maintain  his  superiority  against  rivals. ' 

In  patriarchal  agricultural  life  the  situation  was  some- 
what different.  Class  distinctions  based  on  birth  and 
wealth  had  developed.  Hence  arose  a  leisure  class  trained 
in  a  more  generous  environment  than  that  of  the  com- 
mon man.  They  were  keener  and  more  intelligent,  and 
were  dominating  in  personality.  Power  naturally  be- 
longed to  those  within  the  class  and  was  held  by  the  heads 
of  families  having  prestige  and  wealth.  Yet  after  all 
these  leaders  were  in  close  touch  with  the  freemen  of  the 
community.  All  were  akin  in  blood  and  trod  the  routine 
of  life  together;  hence  the  leaders  truly  represented  the 
ideas  and  interests  of  the  entire  community  as  well  as 
though  they  had  been  elected  representatives. 

But  when  the  era  of  commerce  began,  and  the  popula- 

286 


THE  ELECTORATE  287 

tion  of  the  community  multiplied  through  the  influx  of 
aliens  and  merchants,  the  hereditary  heads  of  the  com- 
munity would  not  adequately  represent  the  differing  in- 
terests of  the  growing  city  or  city  state  and  there  came  a 
clash  of  interests  between  landed  rural  wealth  and  the 
personal  wealth  of  merchant  leaders.  Hence  there  arose 
a  demand  for  representation,  not  of  persons  as  in  mod- 
ern democracy,  but  of  interests  and  localities.  Such  de- 
mands and  their  satisfaction  are  illustrated  by  the  reform 
legislation  of  Solon  in  Athens  and  of  Servius  Tullius  in 
Rome,  both  of  whom  arranged  that  wealth  and  occupa- 
tion should  have  a  share  in  governmental  power.  The 
culmination  of  this  movement  in  classic  times  is  best 
known  through  the  struggle  of  the  plebeians  against  the 
patricians  in  Rome,  which  finally  resulted  in  the  bestowal 
on  every  adult  male  member  of  the  state  the  rights  of 
citizenship  and  of  a  voice,  however  slight,  in  the  affairs 
of  government.  This  voice  was  expressed  by  formal 
vote  cast  on  stated  days.1 

Definition. — When  citizens,  as  such,  meet  in  a  for- 
mal way,  and  at  a  set  time,  and,  in  a  definite  place  and 
manner,  express  their  choice  by  vote  for  officials,  or  rep- 
resentatives, or  for  governmental  measures,  they  form 
in  effect  an  electorate,  which  term  has  been  defined  as 
that  body  of  citizens  legally  authorized  to  participate  in 
the  exercise  of  some  of  the  sovereign  powers  of  the  state. 
Feudalism  and  medievalism  minimized  the  necessity  for 
this  democratic  device  and  what  little  voting  took  place 
was  based  on  hereditary  right  and  on  wealth.  The  com- 
mercial centers  of  Italy  and  Germany  revived  in  some 

1  For  an  excellent  brief  study  of  these  movements,  see  The  State, 
by  Woodrow  Wilson,  pp.  64-120.  It  should  be  remembered  that 
aliens,  freedmen,  and  slaves  were  not  citizens  even  though  born 
residents. 


288  THE  STATE  AND  GOVERNMENT 

respects  the  city-state  methods  of  classical  days,  usher- 
ing in  what  may  be  called  commercial  democracy;  but 
with  the  fifteenth  and  sixteenth  centuries  the  rising  tide 
of  democracy  once  again  brought  the  notion  of  an  elec- 
torate to  the  front.  Its  philosophic  expression  was  in 
the  famous  social-contract  theory  which  asserted  that 
every  man  inherently  was  a  sovereign  and  hence  had  a 
sort  of  natural  right  to  voice  his  wish  in  government. 
In  religion  the  same  idea  was  expressed  in  the  teaching 
that  before  God  all  men  are  equal  and  responsible,  and 
in  the  eighteenth  century  its  economic  equivalent  was 
voiced  by  Adam  Smith  in  his  stress  on  the  individual 
right  of  free  competition  and  freedom  from  govern- 
mental interference  (laissez-faire). 

The  Suffrage  in  England. — In  England  a  national 
electorate  formally  came  into  existence  when  county,  or 
shire,  courts  and  boroughs  were  authorized  to  send  dele- 
gates who  should  assist  the  council  in  advising  the  King 
on  matters  of  taxation.  The  Parliament  of  1265,  sum- 
moned by  Simon  de  Montfort,  was  the  first  to  include 
both  of  these  sets  of  delegates,  but  the  model  Parliament 
of  1295  is  considered  as  the  first  complete  Parliament, 
henceforth  a  national  assembly,  no  longer  a  feudal  coun- 
cil. The  suffrage  in  county  court  first  took  definite  form 
in  1430  when  the  forty-shilling  franchise  was  made  the 
basis  for  voting  and  this  held  true  with  occasional  varia- 
tions for  four  hundred  years.2  Borough  suffrage  was  a 
hopeless  maze  of  varying  systems,  which  grew  more  com- 
plicated with  passing  years,  but  on  the  whole  was  con- 
centrated into  the  membership  of  the  borough  govern- 

aThe  forty-shilling  franchise  still  survives  in  Rhode  Island, 
translated  into  dollars,  in  its  property  qualification  for  suffrage 
in  the  election  of  city  councils  and  in  financial  town  meetings. 


THE  ELECTORATE  289 

ment,  which  was  vested  in  close  monopolistic,  municipal 
corporations  electing  their  members  cooptatively.  The 
whole  system  by  the  beginning  of  the  nineteenth  century 
had  become  vicious  in  the  extreme  through  corruption,  it 
was  utterly  unrepresentative,  and  with  an  electorate  es- 
timated to  be  less  than  three  per  cent  of  the  entire  popu- 
lation. 

Modern  Reforms. — The  definite  reform  movement 
began  in  1830,  resulting  in  a  steady  enlargement  of  the 
membership  of  the  electorate,  until  by  1914  the  suffrage, 
though  curiously  complex  and  undemocratic  in  its  work- 
ings, had  become  almost  manhood  suffrage  and  was  held 
by  about  one  person  in  six,  i.e.,  nearly  seventeen  per  cent 
of  the  population.  This  enlargement  took  place  chiefly 
by  removing  disabilities  based  on  racial  and  religious  dis- 
tinctions and  by  broadening  the  applications  of  a  reduced 
property  qualification  to  all  classes  of  the  population. 

One  important  result  of  the  Great  War  was  the  fra- 
ternalization  arising  from  a  common  danger  and  service, 
and  also  a  deep  appreciation  of  women's  services  in  sus- 
taining the  burden  of  war  preparation,  so  that  naturally 
enough  Parliament  showed  its  appreciation  by  passing 
the  "Representation  of  the  People  Act"  of  1918.  This 
provided  for  adult  suffrage  by  admitting  males  over 
twenty-one  years  of  age  (nineteen  only  if  with  war  ser- 
vice), and  women  over  thirty  years,  thus  adding  about 
two  million  males  to  the  lists  and  about  six  million 
women,  so  that  now  about  one  person  in  three  has  the 
suffrage  or  nearly  thirty-four  per  cent  of  the  whole  popu- 
lation. This  larger  age  qualification  for  women  is  ad- 
mittedly temporary,  it  is  due  to  war  conditions  and  pre- 
sumably within  a  very  few  years  will  be  made  the  same 
as  that  for  men.  Other  reforms  were  added,  such  as  the 


290      THE  STATE  AND  GOVERNMENT 

redistribution  of  seats  on  the  basis  of  one  member  for 
seventy  thousand  (omitting  Ireland),  by  abolishing  very 
largely  the  grievance  of  plural  voting  by  limiting  the 
maximum  votes  to  two,3  by  having  all  elections  on  the 
same  day,  and  by  assuming  the  official  expense  of  elec- 
tions, thereby  relieving  the  candidates  of  a  large  part  of 
the  expense  of  elections. 

In  the  United  States  and  France. — The  American 
Colonies  at  the  time  of  their  Revolution  also  had  a  se- 
verely restricted  suffrage,  on  the  average  about  one  per- 
son in  thirty  of  the  population  having  a  vote  at  the  time 
of  the  adoption  of  the  national  Constitution.  Emphasiz- 
ing, as  the  Americans  did,  the  contract  theory  of  human 
equality  and  having  a  virtual  equality  of  economic  con- 
ditions and  opportunity,  class  distinctions  based  on  prop- 
erty, religion,  and  social  prestige  little  by  little  loosened 
their  grip  on  special  privileges  and  by  1870  the  entire 
country  with  few  exceptions  had  adopted  manhood  suf- 
frage, including  the  enfranchised  slaves.  French  Revo- 
lutionary democracy  also  favored  manhood  suffrage 4 
and  from  these  two  revolutionary  centers  influences 
spread  throughout  the  Americas  and  the  states  of  western 
Europe,  sapping  the  old  class  distinctions  in  matters  of 
suffrage. 

Woman  Suffrage. — The  movement  towards  suf- 
frage for  women  began  definitely  about  the  middle  of  the 
nineteenth  century  and  for  over  fifty  years  was  chiefly 
a  campaign  of  education.  The  rapid  opening  of  the 
schools  and  of  economic  opportunity  to  women  during 
the  last  fifty  years  finally  put  a  new  face  on  the  matter 

'A  residence  domicile  and  a  business  location,  or  a  university 
vote  if  a  graduate. 

4  Under  the  Constitution  of  1793,  but  permanently  from  the  year 
1852. 


THE  ELECTORATE  291 

and  the  climax  of  the  Great  War  and  the  important  serv- 
ices rendered  by  women  in  the  war  gave  the  decision  in 
favor  of  women's  suffrage.  Most  of  the  states  of  Europe 
have  adopted  this  reform  and  adult,  or  general,  suffrage  5 
will  shortly  prevail  throughout  the  English-speaking 
world,  and  in  practically  the  whole  of  Europe,  including 
Russia.  The  states  of  Latin- America,  the  Romance  na- 
tions of  Europe,  and  Japan  are  least  forward  in  move- 
ments towards  adult  suffrage,  owing  to  racial  conditions 
and  traditions. 

The  Electorate  as  a  Department  of  Government. — 
It  is  important  to  note  that  wherever  an  electorate  exists 
it  becomes  ipso  facto  as  truly  a  part  of  the  government  as 
any  other  department  exercising  political  powers.  The 
powers  which  an  electorate  may  exert  vary  considerably 
in  extent  in  different  states,  but  the  tendency  in  democ- 
racies is  to  bestow  increasingly  larger  powers,  as  citizens 
attain  greater  intelligence  and  political  capacity.  The 
powers  usually  assigned  are  executive.  That  is,  the  elec- 
torate may  be  authorized  to  appoint  candidates  to  cer- 
tain designated  offices  through  forms  of  election.  These 
offices  may  be  (a)  executive  or  administrative,  as  in  the 
election  of  a  president,  a  governor,  a  mayor,  or  the  head 
of  an  administrative  department;  or  (&)  judicial,  as  in 
the  case  of  judges  elected  by  popular  vote,  the  system 
prevailing  in  about  three-fourths  of  the  commonwealths 
of  the  United  States  of  America;  or  (c)  legislative,  as  in 
the  election  of  representatives  to  lawmaking  bodies.  The 
new  aspect  in  the  election  of  lawmaking  representatives  is 
that  the  legislatures  in  modern  times  regularly  voice  the 
will  of  the  population  as  such,  and  hence  are  more  demo- 


5  The  term  universal  is  often  incorrectly  used  as  applying  to  man- 
hood, or  to  adult  suffrage. 


292      THE  STATE  AND  GOVERNMENT 

cratic  than  were  the  unrepresentative  bodies  of  earlier 
centuries. 

Occasionally  the  electorate  is  authorized  to  aid  di- 
rectly in  legislation  through  the  initiative  and  referen- 
dum. At  times,  also,  the  electorate  secures  the  right  to 
assist,  through  delegates  chosen  by  lot,  in  judicial  deci- 
sions by  the  performance  of  jury  service,  or  in  the  in- 
dictment of  persons  charged  with  crime  through  the 
grand  jury.  These  are  direct  powers  and  are  important 
in  proportion  to  their  extent.  If,  for  example,  an  elec- 
torate should  have  the  power  directly  to  appoint  or  to 
recall  by  election  all  important  officers  of  the  three  his- 
toric departments  of  government,  and  should  have  a  de- 
ciding voice  in  the  formulation  of  the  constitution,  its 
power  would  be  enormous.  If,  also,  the  electorate  were 
composed  of  all  adults  in  the  nation,  the  people,  express- 
ing their  will  through  the  electorate,  might  well  be  said 
to  be  exercising  full  sovereign  powers. 

Restrictions  on  Electorates. — Electorates,  however, 
rarely  have  so  much  power  assigned  to  them  by  consti- 
tution and  do  not  always  include  all  capable  adult  per- 
sons, nor  even  adult  males.  Theories  of  social  welfare 
may  result  in  modifications  of  the  principle  of  suffrage 
by  introducing  restrictions  intended  to  discriminate  in 
favor  of  the  more  intelligent  and  reputable  classes.  Such 
discriminations  may  be  made  by  requiring  a  minimum 
standard  of  education  or  intelligence,  by  emphasis  on 
economic  capacity  as  shown  by  the  possession  of  taxable 
property  or  the  pursuit  of  an  honorable  occupation,  or 
intellectual  attainment  as  shown  by  the  possession  of  a 
university  degree,  or,  on  the  other  hand,  by  disfranchise- 
ment  of  the  pauperized  and  the  criminal  part  of  the  popu- 
lation and  by  restrictions  based  on  sex,  religion,  or  serv- 


THE  ELECTORATE  293 

ice  in  certain  branches  of  governmental  administration. 
In  aristocracies  or  oligarchies  there  may  be  an  electorate 
composed  of  a  small  class  of  nobles  only,  or  of  persons 
of  wealth.  In  any  so-called  democracy  it  is  always  im- 
portant to  note  (a)  whether  the  restrictions  on  suffrage 
are  severe  or  light  and  (b)  how  numerous  and  how  im- 
portant are  the  direct  powers  placed  in  the  hands  of  the 
electorate.  The  restrictions  may  be  so  great  and  the 
power  so  slight  that  the  system  is  really  a  close  oligarchy, 
as  is  the  case  in  practically  all  of  the  states  in  Latin 
America. 

Methods  of  Voting. — The  most  ancient  method  for 
the  formulation  of  a  decision  through  suffrage  is  that 
known  to-day  as  viva  voce.  A  question  is  submitted  to 
the  assembled  voters  for  their  approval  or  rejection,  and 
by  word  of  mouth,  show  of  hands,  or  other  sign  they 
signify  their  decision.  Ancient  familiar  examples  of 
this  may  be  found  in  Hebraic  history,  the  Homeric  Ec- 
clesia,  and  in  the  Germanic  Assembly  6  of  Tacitus.  Mod- 
ern examples  are  seen  in  the  town  meeting  and  in  ordi- 
nary social  organizations.  The  Athenians  selected  most 
of  their  officials  by  lot,  selecting  the  candidates  from  the 
suffrage  list  made  up  of  Athenians  only,  since  resident 
aliens  and  f  reedmen  were  not  citizens.  The  present  usual 
form  of  suffrage  is  through  the  secret  ballot.  This  de- 
vice was  regularly  employed  by  the  Athenians  and  the 
Romans,  was  revived  in  the  period  of  the  Renaissance, 
and  is  now  in  use  in  an  improved  form  in  practically  all 
modern  states.  The  English  Ballot  Act,  superseding  the 
ancient  method  of  election,  was  not  adopted  until  1872. 
The  improved  method  in  use  throughout  the  United 

*"Si  displicuit  sententia,  fremitu  aspernantur;  sin  placuit,  fremeas 
concutiunt.    Honoratissimum  assenjus  genus  est  armis  laudare." 


294      THE  STATE  AND  GOVERNMENT 

States  of  America,  popularly  known  as  the  Australian 
ballot  system,  was  adopted  in  the  last  decade  of  the  nine- 
teenth century. 

The  Ballot. — There  are  many  forms  of  ballot,  or 
combinations  of  forms,  in  use  and  of  these  may  be  men- 
tioned, for  illustration,  the  circle  form  which  permits  of 
a  straight  party  vote  by  inserting  a  cross  in  the  center 
of  the  circle.  This  ballot,  therefore,  requires  that  the 
candidates  of  each  party  be  arranged  in  a  separate  col- 
umn under  an  appropriate  heading.  By  contrast  the  sev- 
eral candidates  for  each  office  may  be  arranged  under  the 
title  of  that  office,  thereby  compelling  the  voter  to  make 
a  choice  of  the  one  he  prefers  by  marking  the  cross  op- 
posite his  name.  This  system  favors  independent  voting. 
The  "short  ballot"  reform  (in  the  United  States)  advo- 
cates a  larger  use  of  appointment  and  other  devices,  so 
as  to  shorten  the  lengthy  ballots  in  use  by  most  common- 
wealths ;  these  absurdly  lengthy  ballots  7  are  so  complex 
as  to  be  beyond  the  comprehension  of  the  average  voter, 
who,  therefore,  is  tempted  to  vote  a  "straight  ticket"  by 
marking  the  party  circle  as  the  easiest  way  out  of  the 
difficulty. 

The  wide  differences  in  results  accomplished  by  varia- 
tions in  the  form  of  the  ballot  make  clear  the  fact  that 
the  mere  adoption  of  adult  suffrage  does  not  of  itself 
mean  democracy.  In  states  of  great  population  it  be- 
comes equally  essential  that  there  be  provided  an  ade- 
quate mechanism  through  which  the  electorate  may  ex- 
press their  choice  intelligently  and  accurately.  Failing 
this,  bossism  and  political  corruption  prevail  and  democ- 

1  Ballots  are  sometimes  several  feet  in  length.  A  New  York  City 
ballot  some  twelve  years  ago  had  835  names  on  it ;  250  to  400  names 
are  not  uncommon. 


THE  ELECTORATE  295 

racy  becomes  inefficient.  The  next  really  important  prob- 
lem, therefore,  in  the  art  of  politics  is  to  develop  really 
scientific  methods  for  the  expression  of  the  popular 
will. 

Democracy  Through  the  Electorate. — Underlying 
the  great  political  movements  of  the  centuries  there  is 
manifestly  a  steadily  increasing  demand  for  democracy, 
which  for  six  hundred  years  expressed  itself  chiefly  in 
representative  forms  of  government,  but  in  recent  years 
seems  to  be  not  representative  in  type,  but  aiming  rather 
toward  a  direct  participation  of  the  electorate  in  govern- 
ment. It  is  not  at  all  likely  that  great  states  of  large 
population  would  be  able  to  develop  effective  government 
through  a  direct  democracy  but  it  is  practically  possible 
in  states  of  small  population,  and  a  combination  of  both 
direct  and  representative  forms  seems  to  be  inevitable  for 
the  larger  states.  This  trend  is  best  seen  in  the  modern 
experimentation  in  respect  to  the  initiative  and  referen- 
dum, and  this  matter  will  be  studied  by  way  of  illustra- 
tion. 

Policy  Through  the  Executive. — Historically 
speaking,  the  initiation  of  projects  of  policy  belongs  to 
the  executive,  who  has  the  right  not  simply  to  suggest, 
but  to  order  a  policy.  Naturally  this  power  is  shared 
with  his  council,  and  in  practice  may  pass  from  him  to  it. 
With  the  rise  of  a  lawmaking  body  a  new  problem  pre- 
sents itself  in  the  query  as  to  whether  its  members  also 
shall  be  allowed  the  privilege  of  initiating  law.  The 
English  solution  was  that  the  members  of  the  newly  or- 
ganized Lower  House  of  Parliament  offered  their  sug- 
gestions in  the  form  of  an  humble  petition,  but  in  the 
fifteenth  century  the  petitions  took  the  form  of  a  bill 
or  completed  statute  to  be  accepted  or  rejected  by  the 


296      THE  STATE  AND  GOVERNMENT 

King  as  a  whole.8  In  due  time  the  King's  Ministers  be- 
came responsible  to  Parliament,  thus  combining  into  a 
joint  committee  of  the  executive  and  legislative  depart- 
ments the  function  of  introducing  all  important  bills,  al- 
though private  members  in  theory  may  also  introduce 
such  bills  as  they  desire. 

Policy  Through  the  Lawmaking  Body. — Another 
stage  of  development  is  noted  in  a  modern  system  like 
that  of  the  national  Government  of  the  United  States  of 
America.  Under  this  system  the  President  and  his  Cabi- 
net, in  the  form  of  the  President's  message,  suggest  to 
the  lawmaking  body  a  policy  of  legislation,  but  the  initia- 
tion of  these  suggestions,  or  of  any  other  suggestions 
whatsoever,  is  optional  with  the  membership  of  the  Con- 
gress. Whatever  policy,  however,  this  body  may  adopt, 
as  testified  by  the  passing  of  bills,  must  be  referred  to  the 
Executive  for  approval  or  disapproval,  by  his  use  of  the 
veto  power.  The  present  English  system,  so  frequently 
imitated  in  other  states,  lies  halfway  between  this  and 
the  earlier  system.  The  members  of  the  King's  Council, 
the  Cabinet,  are  at  the  same  time  members  of  the  law- 
making  body,  and  are  both  legislative  leaders  and  author- 
ized royal  advisers.  As  leaders  they  dominate  the  initia- 
tion of  a  policy  to  be  passed  as  legislation,  and  as  advisers 
they  voice  the  King's  will;  so  that,  while  bills  are  for- 
mally referred  to  him  for  approval,  consent  is  given  as 
a  matter  of  course. 

Policy  Through  the  Electorate. — The  next  step  in 
development  is  especially  important  and  needs  careful 

8  The  preamble  then  adopted  is  still  the  one  in  use,  namely,  "Be  it 
enacted  by  the  King's  most  excellent  majesty,  by  and  with  the 
advice  and  consent  of  the  Lords  Spiritual  and  Temporal,  and 
Commons,  in  this  present  Parliament  assembled,  and  by  the  author- 
ity of  the  same." 


THE  ELECTORATE  297 

consideration.  With  the  growth  of  democracy  there  de- 
velops an  electorate,  and  the  question  arises  as  to  its 
relationship  to  the  lawmaking  body.  If  this  is  answered 
by  authorizing  the  electorate  to  elect  the  members  of  the 
lawmaking  body,  then  a  system  of  representative  govern- 
ment is  established.  Given  such  a  representative  system, 
the  problem  then  arises  as  to  the  best  methods  of  securing 
a  true  expression  of  the  will  of  the  electorate  through  its 
representatives.  It  will  be  impossible  to  trace  in  detail 
the  many  devices  to  this  end,  but  the  most  important  of 
these  may  at  least  be  mentioned. 

In  the  first  place,  devices  in  respect  to  elections  develop 
one  by  one;  a  limit  is  placed  to  the  term  of  parliament  or 
to  the  duration  of  the  term  of  office,  and  careful  pro- 
visions are  made  for  nominations,  balloting,  and  the 
counting  of  votes,  and,  in  general,  by  a  supervision  of 
the  mechanism  of  party  machinery.  There  may  be  de- 
vised, also,  a  system  of  minority  or  proportional  repre- 
sentation so  as  to  represent  interests  more  truly  and  to 
save  the  minority  from  the  tyranny  of  the  majority. 
Then  arises  the  question  whether  representatives  may  be 
instructed,  and  how,  if  any  one  should  prove  recreant  to 
his  trust,  he  may  be  deprived  of  his  office  and  recalled  to 
private  life.  Following  closely  comes  the  notion  that 
lawmakers  may  be  instructed  by  placing  over  them  a  fun- 
damental law,  formulated  by  a  special  body  in  close  touch 
with  the  electorate,  and  containing  essentially  a  policy 
for  a  generation  at  least.  Again,  the  electorate  may  as- 
sert its  right  to  suggest  by  petition,  or  to  advise  by  pub- 
lic hearings,  what  in  its  opinion  should  be  the  policy  of 
the  state,  and  finally  may  assert  its  right  to  have  laws  re- 
ferred to  the  voters  for  their  approval  or  rejection,  and 
may  even  authorize  these  to  initiate  a  bill  or  a  consti- 


298      THE  STATE  AND  GOVERNMENT 

tutional  amendment,  and  to  have  it  referred  to  the  law- 
making  body  or  to  the  voters  for  approval  or  disapproval. 

If  such  a  development  were  supplemented  by  a  similar 
growth  of  the  representative  character  of  the  electorate, 
as  voicing  the  wish  and  will  of  the  people,  by  removing, 
for  example,  distinctions  based  on  rank,  property,  or  sex, 
a  condition  might  easily  be  reached  in  which  the  elec- 
torate would  be  practically  identified  with  the  people, 
barring  minors  and  incompetents,  and  would  be  legally 
exercising  the  fundamental  powers  of  the  state  by  its 
right  to  initiate  and  determine  the  policy  of  the  state. 
Evidently,  therefore,  a  state  in  working  out  its  govern- 
mental system  along  democratic  lines,  has  the  option  of 
seeking  to  build  up  either  a  truly  representative  system 
closely  in  touch  with  the  popular  will,9  or  of  inclining 
more  and  more  toward  a  direct  democracy  by  the  use  of 
such  devices  as  the  initiative  and  the  referendum.10 

Use  of  the  Initiative  and  the  Referendum  in 
Switzerland. — As  this  last  alternative  has  found  its 
best  development  in  Switzerland  and  in  the  United 
States,  a  brief  statement  in  regard  to  these  experiments 
may  well  be  given.  Remembering  that  the  early  Swiss 
cantons  were  small,  rural  communities,  clannish  and  con- 
servative by  disposition,  it  would  seem  natural  enough 
that  they  should  use  the  direct  democratic  system  of  the 
village,  with  its  elders  as  a  council.11  But  when  admin- 

9  See  pages  333-336  for  discussion  respecting  proportional  rep- 
resentation. 

"By  initiative  is  meant  the  right  of  the  electorate  to  propose 
bills  and  to  demand  that  these  be  submitted  to  the  voters  for 
approval  or  rejection.  By  referendum  is  meant  the  right  of  the 
electorate  to  demand  that  legislation  passed  by  a  representative 
body,  or  bills  initiated  by  the  electorate  be  submitted  to  the  voters 
for  final  approval  or  rejection. 

"This  is  still  true  of  the  cantons  of  Uri,  Glarus,  and  in  the  four 
half-cantons  of  Unter  Walden  and  Appenzell. 


THE  ELECTORATE  299 

istration  grew  in  importance  and  complexity,  there  slowly 
developed  a  system  whereby  the  initiation  of  a  policy  was 
delegated  to  suitable  bodies,  although  subject  to  popular 
approval  on  reference.  In  this  way  the  electorate  checked 
or  balanced  the  power  delegated  to  its  magistrates,  fol- 
lowing thereby  the  teaching  of  the  Swiss  Rousseau  in  his 
Social  Contract.  In  federal  affairs  the  Constitution  of 
1848  gave  formal  voice  to  this  system,  and  its  later 
amendments  have  made  still  more  emphatic  popular  con- 
trol over  fundamental  and  statutory  law.  Under  the 
present  Constitution  there  is  an  optional  referendum  in 
respect  to  statutes  passed  by  the  Federal  Assembly  and 
a  compulsory  referendum  in  amendments  or  revisions 
of  the  Constitution.  For  constitutional  purposes  the  in- 
itiative also  is  authorized  but  is  sparingly  used.  In  the 
larger  cantons,  or  commonwealths,  a  unicameral  assem- 
bly is  used  but  this  is  checked  by  the  legislative  and  veto 
powers  reserved  to  the  electorate.  The  Canton  of  St. 
Gall  in  1831  was  the  first  to  adopt  the  modern  form  of 
referendum  and  the  Canton  of  Vaud  in  1845  was  tne 
first  to  adopt  the  initiative.  At  present  every  one  of  the 
cantons  uses  the  compulsory  referendum  for  constitu- 
tional amendments,  and  all  except  Friburg  for  legislation ; 
and  they  all  with  the  exception  of  Lucerne,  Valais,  and 
Friburg  permit  the  electorate  to  initiate  legislative  and 
constitutional  changes. 

Opinions  differ  widely  in  respect  to  the  utility  of  the 
system,  even  among  the  Swiss  themselves.  To  some  it 
means  the  rule  of  an  unreflecting  mob,  moved  by  impulse 
and  prejudice,  and  dominated  by  motives  of  immediate 
utility  or  expediency.  Others  argue  for  it  as  a  great  de- 
vice for  popular  education  on  political  questions,  and  seek 
to  show  that  in  result  the  vpters  seem  to  be  at  least  con- 


300      THE  STATE  AND  GOVERNMENT 

servative  rather  than  radical,  erring  occasionally  through 
ignorance,  but  on  the  whole  manifesting  an  intuitive  com- 
mon-sense appreciation  of  questions  submitted,  if  these 
are  not  too  technical  nor  too  detailed. 

It  seems  obvious  that  the  experiment  is  being  tried 
under  most  favorable  conditions.  Switzerland  is  a  neu- 
tralized state,  its  people  are  thrifty  and  intelligent,  and 
are  in  close  touch  with  modern  civilization.  Certainly 
neither  the  Federal  Government  nor  the  cantons  show 
any  disposition  to  repeal  the  system,  and  it  is  probable 
that  with  experience  and  deepening  intelligence  that  state 
may  yet  devise  a  workable  system  of  direct  democracy 
cooperating  with  a  well  ordered,  representative  form  of 
government. 

The  Initiative  and  the  Referendum  in  the  United 
States. — In  the  Federal  Government  of  the  United 
States  neither  the  initiative  nor. the  referendum  is  in  use, 
though  there  are  occasional  movements  looking  toward 
the  introduction  of  the  referendum  into  the  federal  sys- 
tem. In  the  commonwealths  the  following  classes  of  leg- 
islation find  illustration: 

1.  In  practically  all  of  them  the  referendum  is  used 
in  purely  local  matters,  usually  in  the  form  of  statutory 
authorization  of  local  bodies  politic  to  decide  for  them- 
selves, whether  or  not  some  local  bill,  or  a  local  appli- 
cation of  some  general  statute,  shall  go  into  effect.    In 
the  same  manner  there  is  in  many  States  a  local  initiative 
in  use,  usually  in  connection  with  the  commission  form 
of  municipal  government. 

2.  Again,  in  many  instances  a  State  constitution  may 
authorize  its  legislature  to  refer  to  the  voters  of  the 
State  some  particular  kind  of  general  legislation,  such 
as,  for  example,  a  proposition  to  issue  a  bond  series. 


THE  ELECTORATE  301 

Such  general  referendums,  to  be  constitutional,  must  be 
authorized  by  the  State  constitution. 

3.  Beginning    in    1898    with    South    Dakota,    about 
twenty  States  by  constitution  have  authorized  the  use 
of  the  initiative  and  referendum  in  general  State  legisla- 
tion.   So  far  Oregon  and  California  have  made  the  most 
effective  use  of  this  device. 

4.  Starting  with  Massachusetts  in  1779-1780,  new  or 
revised  constitutions  and  amendments  are  now  regularly 
referred  to   the   electorate   for   approval   or   rejection. 
Delaware  alone  of  all  the  States  does  not  submit  amend- 
ments, and  some  States,  especially  in  the  South,  promul- 
gate constitutions  on  the  authority  of  the  convention,  ac- 
cording to  the  usual  custom  in  our  early  national  history. 
Since  1890,  for  example,  five  States  12  have,  without  the 
use  of  the  referendum,  adopted  revised  constitutions. 

5.  The  most  radical  change  of  this  sort  was  made  by 
the  adoption  of  the  initiative  in  amendments  to  the  con- 
stitution, started  by  Oregon  in  1902,  and  taken  up  by 
Oklahoma,  in  its  new  constitution,  1907,  and  by  Missouri 
in  1908;  there  are  at  present  some  fifteen  States  that  au- 
thorize the  initiative  in  constitutional  amendments. 

6.  A  legislature  may  authorize  a  referendum  so  as  to 
obtain  from  the  electorate  advice  as  to  whether  or  not  a 
proposed  bill,  or  a  particular  candidate,  has  popular  ap- 
proval.   This  is  a  form  of  instruction,  but  it  is  not  legally 
binding  on  the  legislature.    Party  primaries  may  use  the 
same  system  so  as  to  suggest  suitable  candidates  for 
office.13 

In  this  connection  it  may  be  noted  that  the  purely  local 

"Mississippi,  South  Carolina,  Delaware,  Louisiana,  Virginia. 
"Illinois,  Texas,  Oregon,  and  Massachusetts  among  others  have 
made  use  of  this  form  of  referendum. 


302  THE  STATE  AND  GOVERNMENT 

use  of  the  initiative  and  referendum,  especially  the  latter, 
the  occasional  use  of  the  referendum  in  general  legisla- 
tion, and  its  use  in  the  adoption,  revision,  or  amendment 
of  State  constitutions  are  familiar,  long  tried,  and  well 
established  methods  of  legislating  with  the  aid  of  the 
electorate.  The  general  use  of  the  initiative  and  referen- 
dum in  statutory  legislation,  and  the  use  of  the  initiative 
in  amendments  to  the  constitution  are  new  to  the  Ameri- 
can system,  obviously  borrowed  from  Switzerland,  and 
are  rapidly  gaining  favor  in  popular  estimation.  Nearly 
half  of  the  States  are  experimenting  with  these  devices 
although  most  of  these  are  west  of  the  Mississippi,  where 
a  more  radical  type  of  democracy  prevails  than  can  be 
found  farther  east.  The  advisory  referendum  is  new, 
and  may  develop  into  a  legalized  method  of  giving  in- 
structions to  delegates  or  representatives. 

Evidently  no  dogmatic  statement  in  respect  to  the  out- 
come of  this  tendency  toward  direct  democracy  can  safely 
be  made  at  present.  The  Western  states,  with  fewer 
precedents  and  more  democratic  conditions,  can  experi- 
ment with  new  devices  in  governmental  machinery,  the 
very  thought  of  which  would  shock  the  conservative 
East.  If,  however,  these  experiments  prove  useful,  they 
will  undoubtedly  be  taken  up  in  improved  forms  by  other 
commonwealths.  In  this  way  real  improvements  will 
slowly  work  into  the  governments  of  the  several  States 
and  ultimately  become  the  law  of  the  land.  It  may  be 
observed  that,  so  far  as  the  initiative  and  referendum  are 
concerned,  there  seem  to  be  no  backward  steps.  Wher- 
ever the  system  is  on  trial,  it  seems  to  be  gaining  rather 
than  losing  ground. 


CHAPTER  XIX 
CITIZENSHIP,  RIGHTS  AND  OBLIGATIONS 

CITIZENSHIP 

Citizens  and  Aliens. — Resident  within  a  state  are 
regularly  two  classes  of  persons,  citizens  and  aliens.  The 
citizens  of  a  state  are  those  persons  who  are  domiciled 
within  the  state  and  are  fully  subject  to  its  sovereignty. 
Aliens  are  those  persons  resident  in  a  state  who  owe  al- 
legiance to  another  state. 

In  general,  it  may  be  said  that  the  rights  and  obliga- 
tions of  aliens  are  determined  by  the  laws  of  the  land  in 
which  they  are  resident,  including  in  the  term  laws  those 
treaty  regulations  made  with  other  states  fixing  the  status 
of  their  citizens.  As  a  rule,  civilized  states  grant  to 
aliens  full  protection  of  life  and  property,  conditioned  on 
their  obedience  to  the  law  of  the  land.  They  are  seldom 
allowed  political  privileges,  such  as  office-holding  or  suf- 
frage,1 and  are  regularly  exempted  from  military  ser- 
vice, but  they  may  be  required  to  pay  the  usual  taxes 
assessed  on  property,  or  special  taxes  for  the  privilege  of 
transacting  business.  Their  admission  into  the  state  is 
a  matter  of  treaty  agreement  and  international  custom. 
Every  state  has  the  right  to  bar  out  aliens  from  its  shores 
for  reasons  satisfactory  to  itself. 

1  Seven  of  the  commonwealths  of  the  United  States  allow  suffrage 
to  aliens  who  have  declared  their  intention  to  become  citizens.  The 
tendency  is  to  repeal  such  privileges. 

303 


304      THE  STATE  AND  GOVERNMENT 

Native  and  Naturalized  Citizens. — In  law  there  are 
two  classes  of  citizens:  (a)  citizens  by  birth,2  and  (b) 
naturalized  citizens  who  were  born  under  foreign  sov- 
ereignty but  who  renounced  their  allegiance  to  the  state 
of  their  birth  and  became  naturalized  by  complying  with 
set  requirements  and  taking  the  oath  of  allegiance.  Cor- 
porations, or  artificial  persons,  are  sometimes  called 
qitasi-citizens.  A  corporation  is  an  organization  author- 
ized by  law  to  act  as  a  single  person  for  the  purpose  of 
transacting  business  or  holding  and  transmitting  prop- 
erty. The  duration  of  its  life  is  regulated  by  law  and  is 
usually  specified  in  its  charter;  its  rights  and  obligations 
are  civil,  not  political. 

Naturalized  citizens  are  regularly  granted  the  same 
status  as  native  born  citizens,  but  certain  high  offices  may 
be  withheld  from  them.  Native  born  citizens  only,  for 
example,  may  aspire  to  the  Presidency  of  the  United 
States  of  America.  No  alien  may  claim  naturalization 
as  a  right.  It  is  a  privilege  which  may  be  granted  or  re- 
fused to  him  by  the  land  of  his  residence  at  its  own  dis- 
cretion. As  the  allegiance  of  every  person  is  owed  to 
the  land  of  his  birth  and  parentage,  he  is  responsible  to 
it  for  obligations  incurred  up  to  the  time  of  his  naturali- 
zation, but  there  are  exceptions  to  this  and  states  usually 
regulate  by  treaty  the  relations  which  their  naturalized 
citizens  bear  to  the  country  of  their  former  allegiance, 
if  these  should  happen  to  travel  or  temporarily  reside  in 
their  former  domicile. 

Inequality  in  Citizenship. — In  democracies  the 
theory  is  that  all  citizens  are  equal  before  the  law,  should 
equally  enjoy  the  protection  of  the  law,  and  should  have 
the  same  rights  and  owe  the  same  obligations.  It  must 

2  See  the  term  nationals,  page  47. 


CITIZENSHIP  305 

not  be  inferred,  however,  that  all,  even  native  born  citi- 
zens, are  equal  in  rights.  In  practice,  for  obvious  rea- 
sons, exceptions  are  regularly  made  in  the  case  of  per- 
sons under  guardianship,  such  as  immature  children  and 
persons  of  unsound  mind.  Historically  speaking  dis- 
criminations regularly  have  been  made  against  women, 
who  do  not  always  enjoy  so  large  civil  and  political  privi- 
leges as  men  nor  owe  the  same  obligations.  To-day, 
however,  discriminations  based  on  sex  are  rapidly  being 
removed  in  the  more  advanced  states.  Again,  intelli- 
gence is  so  essential  a  qualification  in  democracies  that 
illiterate  persons  are  sometimes  denied  political  privi- 
leges. For  a  somewhat  similar  reason  these  privileges 
are  sometimes  refused  to  persons  who  do  not  possess  a 
fixed  minimum  of  taxable  property,  the  assumption  being 
that  a  man  incapable  of  acquiring  property  lacks  proper 
intelligence.  Naturally,  also,  in  all  states  full  rights  of 
citizenship  are  refused  to  persons  convicted  of  crime  and 
subject  to  punishment;  aside  from  the  loss  of  their  free- 
dom through  imprisonment,  they  do  not  have,  for  ex- 
ample, the  freedom  of  the  mails  since  their  correspond- 
ence is  restricted  and  censored. 

There  are  other  distinctions  in  rights  also  such  as  those 
found,  for  illustration,  in  the  United  States.  Citizens  of 
the  commonwealths  have  well  defined  constitutional 
rights  as  against  the  statutory  rights  of  citizens  of  ter- 
ritories or  the  District  of  Columbia,  or  the  nationals  of 
dependent  islands  or  of  Indians  living  in  tribal  relations. 
Such  statutory  rights  are  often  much  inferior  to  those 
enjoyed  by  the  citizens  of  the  commonwealths;  espe- 
cially is  this  true  of  political  rights;  the  citizens  of  the 
city  of  Washington,  for  instance,  have  no  suffrage  rights 
in  national  or  even  in  local  elections.  Distinctions  such 


3o6  THE  STATE  AND  GOVERNMENT 

as  these  are  based  on  expediency  and  have  their  proper 
justification. 

In  states  having  aristocratic  or  monarchical  govern- 
ments there  are  other  discriminations  based  on  class  dis- 
tinctions. Ignoring  those  arising  from  social  and  re- 
ligious codes  we  find  in  such  countries  classes  varying 
considerably  in  their  respective  rights  and  obligations. 
Among  these  may  be  mentioned  (a)  the  governing- 
classes,  including  royalty,  nobility,  and  priesthood,  and 
(b)  the  economic  classes,  including  merchants  and  trad- 
ers, artisans  and  mechanics,  farmers  and  peasants,  serfs 
and  slaves.  The  extent  of  variation  found  in  the  sum 
of  rights  and  obligations  depends  on  local  conditions  in 
the  states,  and  the  system  of  each  state  must  be  studied 
separately. 

THE  NOTION  OF  RIGHTS 

Ethical  and  Legal  Rights. — There  is  an  important 
distinction  to  be  made  between  ethical  and  legal  rights. 
Philosophers  in  reflecting  on  human  rights  usually  reach 
the  conclusion  that  all  men  are  entitled  to  such  rights  as 
will  enable  them  to  develop  to  their  highest  capacity. 
The  American  Declaration  of  Independence,  for  exam- 
ple, following  the  teachings  of  John  Locke,  asserts  that 
"all  men  are  created  equal,  that  they  are  endowed  by  their 
Creator  with  certain  inalienable  Rights,  that  among  these 
are  Life,  Liberty,  and  the  pursuit  of  Happiness."  In 
these  days,  also,  men  talk  about  the  "right  to  work/' 
the  "right  to  the  land,"  and  the  "right  to  a  living  wage." 
Such  rights  are  natural  rights  in  the  sense  that  they  voice 
ethical  and  economic  ideals  toward  which  men  may  strive 
and  which  some  day  men  may  realize.  But  they  are  not 


CITIZENSHIP  307 

legal  rights  unless  they  are  recognized  by  the  law  of  the 
land  and  are  secured  to  citizens  through  the  courts  or 
other  governmental  agencies.  In  a  progressive  state  legal 
rights  will  approximate  toward  the  "natural"  or  ethical 
rights  claimed  by  idealists,  but  as  legal  rights,  on  the 
whole,  represent  the  practice  of  the  community,  there 
will  always  be  a  distinction  between  them  and  the  rights 
demanded  in  ethical  systems,  since  the  state  usually  voices 
the  demands  of  its  dominant  elements  and  these  are  not 
necessarily  idealistic.  Rights,  therefore,  in  the  legal 
sense,  are  not  inherent  in  the  individual,  but  arise  from 
and  depend  on  the  law  of  the  land. 

Civil  Rights. — In  the  development  of  democracy 
the  question  of  rights  has  played  a  most  important  part. 
Historically,  since  rights  originate  in  society  and  not  in 
the  state,  they  are  consequently  moral  in  their  nature ;  but 
as  the  state  gains  power  and  attains  supremacy  in  social 
life,  a  person  may  legally  claim  before  the  law  only  such 
rights  as  the  state  is  willing  to  grant  and  to  maintain. 
An  individual  may  have  his  ethical  rights  through  social 
consent  and  sanction  long  before  they  are  sanctioned  by 
the  state.3  In  well  regulated  democracies  the  state  will- 
ingly guaranties  to  its  citizens  all  rights  necessary  for 
individual  and  social  development ;  but  when  government 
is  tyrannical,  many  of  these  rights  may  be  denied  or 
ignored ;  in  which  case  citizens,  lacking  the  essentials  for 
a  manly  and  honorable  existence,  incline  to  become  inert, 
cowardly,  and  base,  and  preferably  should  be  called  sub- 
jects rather  than  citizens.  From  the  beginnings  of  his- 
tory, therefore,  there  can  be  traced  in  all  energetic  com- 

*To  the  abolitionist  in  slavery  times  a  black  slave  was  "a  man 
and  a  brother,"  though  the  law  at  the  time  assumed  that  he  was 
property  and  without  the  rights  of  citizenship, 


3o8      THE  STATE  AND  GOVERNMENT 

munities  a  demand  on  the  part  of  the  people  that  their 
rights  be  recognized  by  the  government  and  guarantied 
to  them  by  proper  regulation  and  supervision. 

The  Securing  of  Civil  Rights. — In  primitive  hordes 
and  in  tribal  organizations  all  members  of  the  community 
enjoyed,  in  theory,  at  least,  equal  rights  and  equal  pro- 
tection. Under  patriarchal  organizations  distinctions  in 
amount  and  quality  developed  along  three  lines:  (a)  the 
social  subordination  of  women  to  men,  (b)  the  introduc- 
tion of  slavery,  and  (c)  social  distinctions  based  on  kin- 
ship, wealth,  and  intelligence.  The  culmination  of  this 
tendency  in  autocratic  monarchies  resulted  in  a  system  in 
which  the  monarch  acknowledged  no  rights  in  his  sub- 
jects save  such  as  depended  on  his  will  and  whim.  In 
practice  this  despotic  will  was  restricted  by  long  standing 
customs,  by  social  institutions,  and  by  the  necessity  of 
securing  the  good  will  and  support  of  the  dominant  part 
of  the  community,  whether  nobility,  army,  or  ecclesiasti- 
cal institution.  The  history  of  tyrannical  despots  shows, 
however,  to  what  lengths  such  a  king  may  go  when  domi- 
nated by  evil  passions.4  Reactions  against  tyranny  re- 
sulted in  a  counter  movement,  in  which  men,  basing  their 
arguments  on  long  standing  custom,  principles  of  justice 
and  divine  sanction,  and  on  special  privileges,  demanded 
a  reorganization  of  government  so  as  to  secure  to  them 
by  legal  sanction  their  most  cherished  ethical  rights.  Po- 
litical democracy  is  the  outcome  of  this  movement.  Its 
development  in  any  state  can  be  traced  by  noting  historic- 
ally how  one  right  after  another  is  secured,  guarantied, 
and  made  part  of  the  unwritten  or  written  constitution  of 
the  state,  and  how  these  privileges,  at  first  the  preroga- 

4  Machiavelli's  Prince  gives  excellent  illustrations  of  the  tyran- 
nical excesses  of  Italian  princes  in  the  fifteenth  century. 


CITIZENSHIP  3<>9 

tive  of  the  few,  gradually  were  won  by  the  many  and 
finally  come  to  be  looked  on  as  the  inherent  right  of  all. 
These  rights  were  not  won  by  the  people  from  their 
governments  without  many  struggles,  and  European- 
American  history  marks  by  its  revolutions  those  strug- 
gles which  resulted  in  numerous  historic  guaranties  of 
rights. 

The  Fundamental  Right. — These  rights  are  all  de- 
rived from  the  one  inherent  fundamental  right,  the  right 
to  life.  All  other  rights  pale  into  insignificance  in  com- 
parison with  the  right  of  every  man  to  live  out  to  the  full 
the  life  imparted  to  him.  Ethically  speaking,  every  per- 
son who  fulfills  his  social  obligation  should  be  allowed  to 
enjoy  the  privileges  of  life  under  the  guaranty  of  the 
state.  This  fundamental  right  differentiates  into  numer- 
ous individual  rights,  more  or  less  carefully  defined, 
secured,  and  guarantied,  according  to  the  degree  of  de- 
velopment of  intelligent  democracy  in  political  communi- 
ties. Every  citizen,  for  instance,  should  have  his  life 
safeguarded  and  secured  from  harm  by  the  war,  police, 
and  judicial  powers  of  the  state.  In  order  to  feed  his 
body  he  should  be  encouraged  to  engage  freely  in  eco- 
nomic occupations,  and  should  have  the  aid  of  the  state 
in  multiplying  and  strengthening  his  economic  oppor- 
tunities and  in  safeguarding  his  property.  In  order  to 
perpetuate  his  race  every  normal  citizen  should  be  al- 
lowed the  privilege  of  marriage  and  parenthood  and  be 
protected  in  his  family  rights.  In  order  to  develop  to 
the  utmost  the  higher  part  of  his  nature,  he  must  be  al- 
lowed the  privileges  of  freedom  of  conscience  and  of 
worship,  the  privilege  of  thinking  freely  and  expressing 
his  thoughts  openly,  and  he  should  be  aided  to  attain  such 
development  by  governmental  encouragement  of  educa- 


3io      THE  STATE  AND  GOVERNMENT 

tion  and  a  free  press.  Finally,  in  order  that  he  may 
maintain  his  rights  and  the  better  fulfill  his  obligations, 
he  should  be  given  a  voice  in  the  government.  Rights 
won  by  the  energy  and  self-sacrifice  of  one  generation 
may  readily  be  lost  by  their  descendants.  Constant  vigi- 
lance and  civic  patriotism  are  the  only  safeguards  of  lib- 
erty, and  no  governmental  guaranty  of  rights  can  be 
effective  unless  made  so  by  an  active  citizen  body  who 
stoutly  defend  and  augment  the  work  of  their  fathers. 

Civil  Rights. — Legal  rights  may  be  divided  into 
two  kinds,  civil  and  political.  Civil  rights  are  concerned 
with  the  protection  of  life  and  property.  Political  rights 
enable  their  possessor  to  share  in  the  exercise  of  govern- 
mental powers. 

From  the  international  standpoint  all  persons  enjoying 
full  citizenship  are  recognized  by  modern  states  as  hav- 
ing the  right  of  expatriation,  that  is,  a  citizen  may  vol- 
untarily renounce  or  abandon  his  allegiance  to  the  land 
of  his  birth,  assuming  that  he  has  fully  complied  with  all 
the  obligations  incumbent  on  him.  He  has,  however,  no 
legal  right  to  demand  citizenship  in  another  state,  unless 
that  privilege  is  freely  granted  to  him  by  that  state  or 
secured  to  him  by  treaty  rights.  On  the  other  hand,  a 
state  may  refuse  its  citizens  the  right  to  leave  the  country 
without  permission,  but  as  a  rule  such  permission  is  freely 
granted  except  in  time  of  war.  A  citizen  when  traveling 
in  foreign  countries  may  claim  protection  for  life  and 
property  from  his  state,  if  these  are  violated  by  the  state 
in  which  he  is  sojourning.  Within  the  bounds  of  his 
state  a  citizen  has  the  right  to  demand  that  his  life  and 
property  be  protected  against  foreign  foes,  against  riot 
and  insurrection,  and  against  assault  and  robbery.  Even 
if  a  citizen  merely  suspects  that  his  life  or  property  is 


CITIZENSHIP  311 

endangered,  he  has  a  right  to  demand  that  the  state  take 
proper  precautions  so  as  to  safeguard  him.  Property 
must  not  be  understood  in  the  sense  of  material  goods 
only,  it  includes  intangible  property,  such  as  claims  and 
rights  arising  from  inheritance  and  contracts.  He  prop- 
erly also  may  demand  that  the  state  take  precautions 
against  contagious  diseases  and  that  the  conditions  of 
life  are  hygienic  and  sanitary.  He  also  may  claim  pro- 
tection for  his  rights  in  family.  The  law  should  secure 
to  him  his  share  in  inheritance,  grant  him  under  proper 
regulations  freedom  in  contracting  marriage  and  secure 
him  in  his  marital  and  parental  rights.  The  sanctity  of 
his  home  should  be  guarded  and  severe  punishment 
visited  on  a  violation  of  chastity.  This  protection  of 
life  and  property  is  afforded  by  the  state  through  its 
war  and  police  powers  and  the  numerous  governmental 
agencies  associated  with  these.  These  agencies  must  be 
made  efficient,  for  the  proper  protection  of  life  and  prop- 
erty is  fundamental  to  the  stability  of  any  state.  It  in- 
spires confidence,  stimulates  devotion  to  government  and 
encourages  industry  and  frugality. 

Broadening  of  Civil  Rights. — In  modern  times  the 
influence  of  democracy  is  deeply  affecting  the  policy  of 
the  state  in  respect  to  life  and  property.  In  addition  to 
protection,  emphasis  is  now  placed  on  development.  Life 
should  be  broadened  and  made  happier,  and  opportunities 
should  be  furnished  so  as  to  allow  larger  possibilities  in 
the  acquisition  of  property.  Hence  citizens  have  the 
right  to  migrate  freely,  to  acquire  and  hold  property,  to 
engage  in  any  honorable  occupation,  to  form  business 
contracts  with  their  fellows  and  to  demand  governmental 
advice  and  assistance  in  the  general  economic  field.  This 
aid  the  state  may  furnish  through  the  building  of  roads, 


312      THE  STATE  AND  GOVERNMENT 

bridges,  canals,  irrigating  works,  and  systems  of  trans- 
portation. It  may  encourage  commerce  and  manufac- 
tures by  subsidies,  tariffs,  technical  instruction,  and 
efficient  protection  for  the  honest  investments  of  its  citi- 
zens in  other  lands.  It  may  furnish  facilities  for  busi- 
ness transactions  through  a  postal  service  and  through 
banks  and  a  stable  means  of  exchange;  it  may  develop 
agriculture  by  scientific  investigation  and  experiment. 
These  functions  which  seem  optional  are  really  neces- 
sary, are  demanded  by  citizens,  and  are  practically  ex- 
tensions of  rights,  since  citizens  insist  in  their  demands 
that  the  state  promote  "general  welfare." 

In  the  same  way  the  right  to  life  now  involves  the 
"pursuit  of  happiness."  Happiness  implies  liberty  of 
mind  and  freedom  for  mental  development.  In  conse- 
quence, in  most  modern  states,  citizens  are  at  liberty  to 
think  freely  and  may  express  their  thoughts  openly,  in 
conversation,  in  print,  or  on  the  public  platform.  They 
may  assemble  freely  in  public  or  in  private,  and  have 
the  right  to  petition  the  government  on  any  subject  what- 
soever. In  matters  of  religion  they  may  follow  their 
consciences  without  interference  from  the  state  and  may 
organize  whatever  agencies  they  wish  for  intellectual 
improvement.  Even  the  demand  for  general  and  broad 
education  is  essentially  a  right  at  the  present  time,  since 
no  modern  state  can  hope  to  make  progress  if  it  denies 
the  right  of  its  citizens  to  secure  a  liberal  education. 

Famous  Guaranties  of  Rights. — Many  of  these 
rights  are  historic,  tracing  back  to  ancestral  customs  and 
to  codifications  of  these,  such  as  that  contained  in  the 
Magna  Charta  of  1215;  or  the  "Golden  Bull"  of  Hun- 
gary (1222),  its  charter  of  national  liberty;  or  the 
"Great  Privilege"  won  from  the  Burgundians  by  the 


CITIZENSHIP  313 

Netherlands  in  1477.  Others  represent  later  struggles 
for  political  liberty,  such  as  the  several  English  bills  of 
rights  of  the  seventeenth  century  and  the  famous  state- 
ments of  rights  that  came  in  the  eighteenth  century 
through  the  Revolutions  in  the  American  Colonies  and 
in  France,  and  were  formulated  in  the  Declaration  of 
Independence,  in  the  bills  of  rights  contained  in  the  Revo- 
lutionary constitutions  of  Virginia,  Massachusetts,  and 
Pennsylvania,  and  in  the  French  Declaration  of  the 
Rights  of  Man,  issued  by  the  National  Assembly  in 
I789.5  The  best  short  summary,  though  not  complete, 
of  well  recognized  legal  rights  is  contained  in  the  amend- 
ments to  the  Constitution  of  the  United  States  of 
America.  The  joint  influence  of  these  several  centers 
of  democratic  agitation  is  plainly  shown  in  the  funda- 
mental laws  of  Latin  America.6 

Regulation  of  Rights. — In  practice,  the  exercise  of 
rights  is  subject  to  reasonable  regulation.  A  citizen  may 
speak  freely,  but  he  must  not  slander  nor  libel  his  fel- 
lows; he  may  criticize  governmental  policy,  but  he  must 
not  incite  to  violence;  he  may  worship  God  as  he  pleases, 
provided  he  is  not  immoral  in  his  religious  practices ;  he 
may  engage  in  any  business  he  pleases,  provided  it  is 
not  unlawful;  he  may  enter  any  profession,  provided  he 
has  the  requisite  skill;  he  may  marry  whom  he  wishes, 
provided  he  is  a  fit  person  to  marry  and  the  woman  gives 
consent.  Such  regulations  are  often  specified  in  the 
laws;  in  other  cases  they  are  worked  out  by  the  courts, 
which  act  on  the  principle  that  the  law  allows  to  every 

8  See  Jellinek,  Declaration  of  the  Rights  of  Man  and  of  Citizens. 

8  For  illustration  of  this,  see  article  by  the  author  on  "The  Spanish 
Source  of  the  Mexican  Constitution  of  1824,"  Texas  State  His- 
torical Quarterly,  January,  1900. 


314      THE  STATE  AND  GOVERNMENT 

citizen  the  utmost  freedom  consistent  with  the  rights  of 
others  and  the  general  welfare. 

In  times  of  war  personal  rights  may  have  to  yield 
to  the  larger  right  of  life  of  the  unified  community.  The 
state  in  defense  of  its  life  may  find  it  necessary  to  place 
large  restrictions  on,  or  even  to  deny  in  toto  the  rights 
of  its  citizens.  Obligations,  not  rights,  are  emphasized 
in  war.  Yet  the  invasion  of  personal  rights  should  be 
guarded  against  as  much  as  possible,  reserving  decisions 
to  the  courts  if  feasible  rather  than  to  officials,  in  respect 
to  the  necessity  of  suspending  the  guaranties  of  rights. 

Basis  of  Political  Rights. — Legal  rights,  as  already 
said,  are  based  on  the  law  of  the  land  and  secured 
through  governmental  agencies.  But  if  the  citizen  body 
as  a  whole  has  no  voice  in  the  making  of  laws,  and  if 
the  government  is  controlled  by  a  comparatively  small 
per  cent  of  the  citizens,  there  would  be  no  real  assurance 
that  general  rights  of  life  and  property  would  be  safe- 
guarded. Experience  shows  that  a  small  class  in  control 
of  the  law  and  its  administration  too  easily  inclines  to 
neglect  general  interests,  especially  when  these  are  in 
conflict  with  its  own  private  interests.  For  such  reasons 
there  have  regularly  arisen  demands  for  the  govern- 
mental sanctioning  of  such  political  principles  as  these: 

1.  That  office  be  considered  a  public  trust  not  a  pri- 
vate right,  and  that  it  be  administered  by  responsible 
persons,  who  may  be  called  to  account  for  violations  of 
law. 

2.  That  the  judicial  system  be  administered  impar- 
tially, so  as  to  secure  to  all  citizens  their  rights. 

3.  That  the  law  be  definite,  and  open  to  the  knowledge 
of  all. 

4.  That  the  citizen  body  have  a  determining  voice  in 


CITIZENSHIP  315 

the  making  of  law,  either  directly  or  through  represen- 
tatives. 

5.  That  the  electorate  or  body  of  voters  include  the 
largest  possible  per  cent  of  citizens  of  recognized  ma- 
turity and  intelligence. 

The  Winning  of  Political  Rights. — These  demands 
are  now  generally  acknowledged  in  democracies  and  in 
consequence  a  large  proportion  of  the  citizen  body  have 
the  political  right  of  suffrage.  This  power  has  been 
wielded  so  effectively  that  other  political  rights  have  been 
secured  one  by  one  so  that  electorates  are  steadily  adding 
to  their  powers. 

In  addition  to  the  right  of  suffrage,  there  is: 

1.  The  right  of  every  voter  to  aspire  to  any  office  in 
the  state. 

2.  The  right  of  the  electorate  to  fill  offices  through 
election  or  through  elected  representatives,  and  the  right 
to  hold  all  officials  responsible  for  inefficiency  and  mis- 
conduct in  office. 

3.  The  right  to  assist  in  the  settlement  of  judicial  cases 
by  jury  service;  this  is  chiefly  true  in  English-speaking 
countries. 

4.  The  right  to  discuss  freely  and  to  criticize  openly 
in  speech,  on  the  platform,  or  through  the  press,  govern- 
mental measures,  policies,  and  officials. 

5.  The  right  to  determine  directly  or  through  repre- 
sentatives the  fundamental  law  of  the  land,  whether  ex- 
pressed in  a  written  or  unwritten  constitution. 

How  Rights  Are  Maintained. — In  these  rights  the 
essential  point  is  that  the  citizens  themselves  directly  par- 
ticipate in  the  exercise  of  governmental  functions,  or 
name  from  their  ranks  those  who  shall  perform  these 
activities  in  the  name  and  for  the  welfare  of  the  people. 


316      THE  STATE  AND  GOVERNMENT 

President  Lincoln  ably  voiced  the  democratic  ideal  in  his 
famous  Gettysburg  speech,  in  expressing  his  determina- 
tion that  "government  of  the  people,  by  the  people,  and 
for  the  people  shall  not  perish  from  the  earth."  Natu- 
rally, the  complete  attainment  of  this  ideal  is  possible 
only  in  high  civilization,  but  all  modern  nations  tend 
to  enlarge  more  and  more  the  political  rights  of  their 
citizens. 

These  rights  have  sometimes  been  attained  in  advance 
of  a  general  capacity  to  use  them  wisely,  with  the  result 
that  inefficiency  and  corruption  become  common.  Ex- 
perience, however,  which  is  always  the  best  teacher, 
brings  home  the  lesson  of  misgovernment  in  heavy 
taxation,  excessive  death  rates,  and  economic  disorders. 
Democracies,  therefore,  tend  to  emphasize  at  the  present 
time  character  and  intelligence  as  prerequisites  for 
suffrage;  with  the  proviso,  however,  that  the  state  fur- 
nish free  general  education  and  further  morality,  so  as 
to  develop  its  citizens  into  persons  capable  of  an  intelli- 
gent exercise  of  the  suffrage.  Yet  it  should  never  be 
assumed  that  suffrage  is  an  inherent  right  belonging  to 
every  citizen.  The  state  properly  may  refuse  the  suffrage 
to  evil,  careless,  or  incompetent  citizens  who  misuse  or 
fail  to  use  the  vote  confided  to  them.  A  general  educa- 
tion in  social  and  civic  rights  and  obligations  and  an 
efficient  system  of  schools  are  the  safest  guaranties  of  a 
democratic  suffrage.  Lacking  these,  a  more  aristocratic 
form  is  preferable  until  political  intelligence  becomes 
common. 

THE  OBLIGATIONS  OF  CITIZENSHIP 

Allegiance. — The  fundamental  duty  of  all  citizens 
is  obedience,  allegiance,  and  fidelity  to  the  state.  The 


CITIZENSHIP  317 

state  voices  the  unity,  the  will,  the  collective  interests  of 
the  entire  community.  Its  commands,  therefore,  must 
be  obeyed;  its  interests  are  superior  to  private  interests, 
and,  in  general,  no  ties  should  be  considered  more  bind- 
ing than  those  that  bind  citizens  to  their  country.  This, 
however,  does  not  mean  that  a  citizen  owes  passive  obedi- 
ence to  a  tyrannical  government.  As  a  moral  being  he 
is  under  moral  obligations  to  turn  tyranny  into  democ- 
racy, but  legally  speaking  he  must  obey  the  law.  If  for 
conscience'  sake  he  defy  the  law,  he  should  submit  to  the 
punishment  placed  upon  him  and  find  his  justification  in 
the  approbation  of  his  conscience.  In  these  days  for- 
tunately governments  are  rarely  tyrannical  and  hence 
obedience  to  law  is  both  legally  and  ethically  right. 

Service. — The  duty  of  allegiance  implies  the  duty 
of  service.  This  may  involve  service  in  war,  or  in  assist- 
ing in  the  maintenance  of  domestic  peace,  or  service  in 
public  office,  or  on  public  works,  such  as  roads,  bridges, 
buildings,  and  fortifications.  Every  capable  citizen  in 
theory  may  be  summoned  to  serve  in  the  army  or  navy 
of  his  country.  This  may  involve  compulsory  service  for 
a  stated  term  of  years,  as  in  France,  or,  as  in  the  United 
States  of  America,  in  addition  to  a  small  standing  army, 
citizens  may  be  encouraged  to  form  volunteer  forces, 
and  by  training  in  times  of  peace  thereby  become  a 
nucleus  for  the  larger  army  needed  in  war.  In  case  of 
necessity,  however,  every  citizen  capable  of  bearing  arms 
may  be  summoned  to  war  and  is  in  duty  bound  to  serve 
his  country  to  the  best  of  his  ability.  On  a  smaller  scale 
citizens  may  be  summoned  to  assist  the  authorities  in  the 
suppression  of  riots  or  rebellion,  or  to  aid  in  the  arrest 
of  disturbers  of  the  peace.  In  future  great  wars  pre- 
sumably women  also  may  be  drafted  into  war  service  for 


318      THE  STATE  AND  GOVERNMENT 

the  performance  of  such  duties  as  naturally  befit  their 
physique.  In  urgent  need,  as  in  Russia  or  Poland, 
women  may  even  be  encouraged  to  enter  military  service 
and  participate  in  battle. 

The  obligation  to  serve  applies  also  to  service  in  office. 
Inasmuch,  however,  as  offices  now  are  regularly  salaried 
and  are  honorable,  office-holding  seems  to  be  a  privilege 
rather  than  an  obligation.  Yet  if  the  burdens  of  office 
should  outweigh  its  emoluments,  the  state  could  compel 
its  subjects  to  assume  office.  This  is  exemplified  by  jury 
service  which  is  properly  a  right  not  an  obligation,  yet 
being  shunned,  it  has  been  made  compulsory. 

Service  on  public  works  is  no  longer  common,  though 
still  known.  In  many  rural  communities  of  the  United 
States  of  America,  service  for  several  days  in  the  year 
on  the  public  roads  is  often  required.  In  case  of  need, 
however,  the  state  can  always  demand  the  services  of  its 
citizens,  and  in  times  of  war  or  sudden  disaster  private 
citizens  may  be  forced  into  service  and  compelled  to 
labor  without  pay.  This  was  illustrated  in  San  Fran- 
cisco and  in  Italy  after  the  earthquakes,  where  male 
citizens  of  all  classes  were  compelled  at  the  point  of  the 
bayonet  to  assist  the  soldiery  in  subduing  the  conflagra- 
tions. 

Taxation. — Taxation  in  normal  times  takes  the 
place  of  compulsory  service  in  modern  states.  When 
citizens  become  free  it  is  often  detrimental  to  their  inter- 
ests for  them  to  perform  governmental  service  and  neg- 
lect their  own  affairs.  Hence  they  readily  grant  a  small 
per  cent  of  their  income  in  lieu  of  service.  This  proves 
advantageous  to  the  government  also,  for  with  money  it 
can  hire  willing  workers,  always  more  efficient  than  com- 
pulsory service.  In  modern  states,  therefore,  the  gov- 


CITIZENSHIP  319 

ernment  through  taxation  secures  means  to  support  a 
well  trained  permanent  army  and  navy,  and  capable 
officials  and  skilled  labor  for  public  works.  As  the 
citizens  themselves  in  democracies  fix  by  law  their  own 
tax  rates,  and  settle  the  items  for  expenditure  and  super- 
vise the  auditing  of  accounts,  friction  is  thereby  avoided. 
Government  and  people  harmoniously  cooperate  in  fur- 
thering general  interests,  for  all  recognize  that  joint  suc- 
cess is  individual  benefit  and  that  the  injury  of  any  part 
becomes  the  detriment  of  the  whole. 

One  implication  from  this  power  of  the  state  to  de- 
mand service  and  tax  is  that  it  may  deprive  its  subjects 
of  their  property  at  will.  This  power,  however,  is  rarely 
exercised  arbitrarily  in  modern  times.  The  state  may,  if 
necessary,  take  away  or  even  destroy  property  without 
compensation,  and  this  is  frequently  done  in  times  of 
war,  conflagration,  famine,  or  pestilence.  But  if  the  gen- 
eral safety  is  not  involved,  our  modern  theory  of  rights 
demands  that  the  government  be  instructed  to  pay  full 
value  for  all  property  confiscated  for  public  purposes. 
Hence  in  the  United  States  of  America,  for  instance, 
though  the  state  under  the  so-called  power  of  eminent 
domain,  may  take  land  and  other  property  for  public 
use,  the  law  provides  that  it  pay  adequate  compensation 
to  the  owners,  the  amount  of  which  is  left  to  be  deter- 
mined by  the  courts. 

Control  Over  Taxation. — Political  writers  fully 
recognize  that  the  power  of  taxation  is  the  very  heart  of 
modern  governmental  systems.  Arbitrary  and  unequal 
taxation  discourages  enterprise  and  economic  energy; 
antiquated  methods  of  taxation  are  ruinous  to  progress. 
The  best  thought  and  wisest  administration  must  be  given 
to  this  department.  At  the  same  time  corruption  is  most 


320      THE  STATE  AND  GOVERNMENT 

likely  to  flourish  where  the  "spoils"  are.  For  such  rea- 
sons the  modern  battles  of  democracy  have  regularly 
raged  about  principles  of  taxation.  In  England  the 
struggle  has  been  for  the  "control  of  the  purse" ;  in  the 
American  Colonies,  that  there  be  "no  taxation  without 
representation'.';  and  in  general,  that  all  taxation  be  for 
public,  never  for  private,  interests,  and  that  the  burden 
of  taxes  be  equitably  assessed.  The  motive  in  such 
struggles  is  not  necessarily  mercenary;  experience 
shows  that  when  the  citizen  body  as  a  whole  controls  the 
tax  rate  and  expenditures,  public  policy  loses  its  military 
aspects  and  attention  is  concentrated  on  the  upbuilding 
of  internal  improvements  and  systems  of  general  educa- 
tion. In  place  of  war  come  art,  science,  and  happiness. 
A  citizen  should  realize  that  his  welfare  and  that  of 
his  kinsmen  and  friends  are  involved  in  the  welfare  of 
the  state.  The  natural  love  for  the  land  of  one's  birth 
is  strengthened  by  an  appreciation  of  its  helpfulness  in 
securing  happiness  and  prosperity.  Patriotism  is,  there- 
fore, intensified  in  devotion  and  government  grows  in 
efficiency,  since  officials  know  that  they  can  rely  on  popu- 
lar support,  and  citizens  understand  that  the  government 
has  their  best  interests  at  heart.7  It  may  be  argued, 
therefore,  that  the  final  and,  in  some  respects,  the  most 
important  obligation  placed  on  a  citizenship  is  the  obli- 
gation to  take  an  intelligent  interest  in  the  government 
and  policies  of  his  country.  Patriotism  should  not  be 
thought  of  as  a  duty,  or  as  associated  merely  with  war ; 
true  patriotism  should  be  felt  as  a  privilege,  to  be  exer- 
cised occasionally  in  time  of  war  but  regularly  in  times 
of  peace. 

'Pericles'  panegyric  on  the  State,  in  his  Funeral  Oration  is  well 
worth  reading  in  this  connection.  See  Thucydides'  Peloponnesian 
War,  vol.  i,  Book  2,  paragraphs  34-48. 


CHAPTER  XX 

POLITICAL  PARTIES    .; 

Political  Parties  as  Agencies  of  Democracy. — A 
body  of  citizens  works  politically  through  its  electorate, 
and  the  voters  who  compose  the  electorate,  in  order  to 
perform  their  share  of  the  work  of  government  effi- 
ciently, should  have  a  general  intelligent  understanding  of 
the  forces  at  work  in  political  life.  If  all  men  should  at- 
tain maturity  in  intellectual  development,  public  opinion, 
working  through  a  democratically  organized  government, 
would  be  amply  sufficient  for  all  purposes.  Modern 
civilization,  however,  is  too  immature  for  us  to  work  on 
the  assumption  that  all  men  are  intelligent.  A  small  per 
cent  only  are  really  expert  in  political  affairs,  and  the 
average  man  has  yet  much  to  learn,  even  in  a  democracy. 
Under  such  conditions  it  is  not  strange  that  men  often 
fail  to  see  a  question  in  its  truer  meaning,  and  form 
partial  and  distorted  opinions  in  regard  to  public  policy. 
Hence  there  regularly  exist  in  political  communities 
numerous  factions  and  parties,  each  favoring  a  policy 
that  in  its  opinion  is  essential  to  public  welfare.  The 
existence  of  these  factions  or  parties  provokes  discussion, 
and  out  of  discussion  may  arise  wisdom  and  conviction. 
In  our  present  stage  of  civilization,  therefore,  political 
parties  have  an  important  function;  through  them  dis- 
cussion takes  place,  rights  are  won  or  lost,  and  policies 


322      THE  STATE  AND  GOVERNMENT 

good  or  bad  adopted.  They  become  an  agency  through 
which  the  citizen  body  works,  in  order  to  attain  what  at 
the  time  seems  expedient  and  best.  Rightly  used  they 
become  indispensable  to  a  democratic  government,  but 
perverted  they  corrupt  democracy  and  weaken  public 
morals.  For  such  reasons  an  outline  of  their  develop- 
ment and  organization  becomes  necessary  to  an  under- 
standing of  politics. 

Development  of  Parties. — In  despotisms  differ- 
ences of  political  opinion  find  no  formal  expression,  and 
tend  to  degenerate  into  intrigues  for  place  and  power. 
In  old-fashioned  monarchies  and  aristocracies  a  ruling 
class  has  power,  and  maintains  it  permanently  unless 
overthrown  by  war  or  revolution.  Under  such  systems 
assassinations  and  armed  rebellion  are  the  chief  means 
whereby  an  unpopular  government  may  be  overthrown. 
An  advantage  was  gained  when  the  principle  of  election 
was  definitely  established  in  governmental  organizations; 
war  chiefs  and  rulers  were  thus  chosen  almost  from  the 
beginnings  of  political  life,  although  this  political  right 
was  lost  under  autocratic  governments  but  was  regained 
in  the  era  of  republics.  A  great  advance  was  made  when 
elections  became  frequent  and  affected  not  simply  the 
head  of  the  state  but  all  officers  of  importance.  This 
development,  so  well  known  through  Greek  and  Roman 
government,  has  proved  to  be  a  powerful  agent  in  secur- 
ing stability  and  peace.  For  when  the  system  of  election 
has  become  a  familiar  device  in  political  life,  if  a  body 
of  citizens  become  incensed  at  the  policy  of  those  in 
power,  instead  of  rushing  to  arms  as  formerly  and  risk- 
ing all  on  their  success  or  failure  in  war,  they  enter  on 
a  political  campaign  and  seek  to  overcome  their  op- 


POLITICAL  PARTIES  323 

ponents  through  the  ballot.1  After  the  election  the 
defeated  party  yields  power  to  the  victors  and  awaits  an 
opportunity  to  gain  supremacy  at  the  next  election.  Such 
a  system  has  obvious  advantages  over  the  old  method  of 
rebellion  or  assassination.  It  can  be  at  its  best,  however, 
only  when  all  really  important  interests  can  thus  express 
their  opinions,  otherwise  revolutions  will  alternate  with 
elections.  It  is  essential  also  that  a  large  part  of  the 
electorate  be  fairly  intelligent,  so  as  to  decide  wisely  in 
regard  to  opposing  policies,  and  also  that  they  have  a 
proper  regard  for  law,  so  as  to  use  honest  methods  in 
elections  and  to  be  willing  to  abide  by  the  result. 

"Bossism." — Evidently,  therefore,  an  efficient  party 
system  can  be  found  efficacious  only  when  all  interests 
are  properly  represented  and  when  the  electorate  is 
largely  made  up  of  intelligent  and  law-abiding  citizens. 
The  evils  so  prevalent  in  the  elections  of  democracies  are 
not  inherent  in  democracy,  but  are  due  to  the  neglect  of 
fundamental  principles;  interests  are  not  properly  repre- 
sented, large  numbers  of  the  electorate  are  often  illiterate 
and  ignorant  of  political  issues,  and  party  managers  too 
often  violate  every  law  of  political  ethics  in  their  eager- 
ness for  victory.  Yet  "bossism"  in  politics,  is,  after  ail, 
merely  a  passing  phase  of  a  period  of  transition.  The 
so-called  practical  politician  is  often  the  veriest  tyro  in 
actual  knowledge  of  political  principles.  His  policy  is 
crude  and  shortsighted  and  based  on  the  Machiavellian 
principle  that  the  end  justifies  the  means.  Permanent 
success  is  based  only  on  a  fostering  of  economic  interests 
of  all  the  people  and  on  a  strengthening  of  their  intelli- 

*The  vocabulary  of  political  parties  is  still  fond  of  militaristic 
terms,  for  example:  "campaign,"  "victory,"  "defeat,"  "invade  the 
enemy's  territory,"  "marshal  the  forces,"  etc. 


324      THE  STATE  AND  GOVERNMENT 

gence  and  morality.  Corrupt  politicians  may  seem  to 
succeed  for  a  time,  but  they  ultimately  earn  for  them- 
selves only  contempt  and  dishonor.  All  experience  shows 
that  permanent  honor  in  the  political  annals  of  any  coun- 
try is  paid  only  to  those  men  who  despise  trickery  and 
dishonesty  and  who  labor  intelligently  for  the  larger 
interests  of  their  fellow-citizens. 

Obviously,  therefore,  the  true  policy  of  government 
should  be  to  encourage  by  its  laws  intelligence  and  hon- 
esty in  government.  Political  corruption  and  betrayal 
of  trust  should  be  sternly  punished  and  electional  systems 
should  be  so  adjusted  as  to  favor  honest  voters  and  to 
encourage  free  expression  of  intelligent  opinion.  No 
wise  democracy  can  afford  to  allow  the  primary,  the  con- 
vention, the  ballot,  and  the  count  to  be  so  manipulated 
as  to  thwart  the  will  of  the  electorate.  The  machinery 
of  government  should  not  be  adjusted  for  incompetency 
and  dishonesty  but  for  the  accomplishment  of  the  best 
work  in  the  most  economical  manner.  An  intelligently 
educated  citizen  body  with  guarantied  civil  and  political 
rights  and  with  proper  facilities  for  the  expression  of 
its  will,  may  always  be  depended  on  to  assert  its  privi- 
leges and  express  its  will.  Democracy  demands  energy, 
intelligence,  and  aggressiveness  for  its  maintenance,  and 
these  must  be  purposively  fostered  by  the  state  as  an 
indispensable  condition  of  its  own  prosperity. 

The  Rise  of  Political  Parties. — The  modern  party 
system  originated  in  England  through  the  cleavage 
brought  about  by  the  Revolution  of  1688  and  the  separa- 
tion of  interests  that  arose  between  the  supporters  of 
the  new  dynasty  and  those  who  favored  the  old.  The 
real  interests  of  the  Kingdom  were,  however,  so  poorly 
represented  in  Parliament  that  parties  for  over  a  cen- 


POLITICAL  PARTIES  325 

tury  and  a  half  were  made  up  of  combinations  of  fac- 
tions, voicing  petty  or  personal  interests  rather  than  the 
general  interests  of  the  state.  The  reform  of  parlia- 
mentary representation,  which  began  with  the  Act  of 
1832,  allowed  the  truer  interests  of  the  Kingdom  to  be 
represented  with  a  fair  degree  of  accuracy.  The  result 
was  the  development  of  the  modern  British  party  system, 
which  has  been  imitated  with  more  or  less  success  in  most 
of  the  advanced  nations  of  modern  times.  A  brief  ex- 
planation of  this  will  first  be  given  and  then  of  the 
contrasting  systems  of  France  and  the  United  States  of 
America  for  purposes  of  comparison. 

The  British  Party  System.— The  theory  of  the 
British  political  party  is  based  on  a  two  party  system : 
the  one  emphasizing  the  landed  and  vested  interests  of 
the  nobility  and  the  established  church,  as  the  historic 
supporters  of  the  throne,  and  finding  down  to  1832  its 
chief  support  in  the  powerful  House  of  Lords ;  the  other 
representing  more  directly  the  commercial,  manufactur- 
ing interests  of  the  nation  and  voiced  in  the  House  of 
Commons.  Since  these  latter  interests  became  dominant 
in  the  nineteenth  century  when  Great  Britain  became  the 
leading  power,  the  Lower  House  has  steadily  gained 
prestige  as  against  the  other  and  in  1911  won  a  notable 
victory  by  depriving  the  House  of  Lords  of  its  absolute 
veto  power  over  legislation  passed  by  the  Lower  House. 
Henceforth,  if  the  Commons  passes  a  bill  at  three  suc- 
cessive sessions  it  receives  the  signature  of  the  King 
without  the  consent  of  the  Lords.  Presumably  the  next 
step  will  be  to  reorganize  the  composition  of  the  House 
of  Lords  and  this  may  be  expected  within  a  very  few 
years,  since  it  is  the  declared  policy  of  the  Coalition  now 
in  power. 


326      THE  STATE  AND  GOVERNMENT 

In  late  years  the  weakening  Tory,  or  Conservative, 
party  was  strengthened  by  the  addition  of  a  conservative 
section  of  Liberals,  favoring  a  policy  of  protection,  the 
two  unitedly  forming  the  Union  party.  A  racial  interest 
also  was  stressed  by  the  Irish  members,  the  Nationalists 
demanding  home  rule,  or  autonomy.  Labor  interests 
also  had  formed  a  party  so  as  to  influence  parliamentary 
legislation  and  a  doctrinaire,  radical  interest  was  repre- 
sented by  socialist  factions.  The  War  brought  about  a 
coalition  of  all  parties  with  Lloyd  George  at  the  head  as 
Premier  and  at  the  close  of  the  War  a  new  election 
(December,  1918)  was  ordered.  The  party  situation 
was  obviously  in  confusion  for  Lloyd  George,  a  Liberal, 
was  at  the  head  of  the  coalition  which  included  Liberals 
and  Unionists  and  was  opposed  by  the  old  Liberal  party 
headed  by  Asquith.  Part  of  the  Labor  party  split  and 
joined  the  Coalition,  and  the  Irish  Nationalists  were 
opposed  by  the  Sinn  Feiners  advocating  the  independence 
of  Ireland.  The  Coalition  won  a  great  victory  at  the 
polls,  but  it  is  obvious  that  new  lines  are  forming,  which 
may  result  in  a  realignment  at  the  next  election  on  a 
two-party  basis — Unionist  and  Radical-Labor — or  else 
in  a  series  of  small  parties  working  together  as  a  bloc, 
or  coalition. 

Assuming  that  the  British  party  system  is  based  on 
two  parties  as  heretofore,  it  may  be  said  that  it  is  aris- 
tocratic in  organization  and  presents  marked  contrasts 
to  the  rival  American  system  across  the  seas.  The  lead- 
ers of  each  party,  who  attain  leadership  through  their 
prestige  and  capacity,  virtually  dictate  the  platform  and 
policy  of  the  party.  Whichever  party  or  coalition  con- 
trols, the  majority  of  the  House  of  Commons  forms  the 
King's  Ministry  and  dictates  national  policy.  This 


POLITICAL  PARTIES  327 

makes  it  incumbent  on  them  to  keep  in  close  touch  with 
the  House  lest  under  the  stimulus  of  the  Opposition  it  be 
induced  to  vote  adversely  on  some  governmental  measure. 

In  case  of  a  new  election,  there  is  no  long-drawn-out 
campaign  preceded  by  great  national  party  conventions.2 
Instead,  the  leaders  of  each  party  get  together,  prepare 
a  statement  of  what  they  consider  to  be  the  issues  to  be 
fought  out  at  the  coming  election,  and  then  in  a  public 
and  formal  way  announce  these.3  This  platform  is  at 
once  taken  up  for  discussion  and  indorsed  by  the  local 
party  committees,  who  prepare  their  lists  of  candidates, 
under  the  general  suggestion  of  the  national  leadership. 
Naturally  the  party  record,  the  issues  of  the  campaign, 
and  the  personality  of  the  numerous  candidates  all  enter 
into  the  situation.  Since  candidates  do  not  necessarily 
have  to  be  residents  in  the  districts  for  which  they  stand, 
there  is  a  somewhat  large  discretion  possible  in  nomina- 
tions, thus  allowing  for  special  arrangements  between 
candidates  and  constituencies.  Under  this  system  the 
election  becomes  the  occasion  when  the  electorate  has  its 
opportunity  to  declare  its  will;  as  a  rule  the  voters  take 
a  deep  interest  in  the  election,  knowing  that  the  results 
as  shown  by  the  membership  of  the  Commons  will  deter- 
mine the  policy  of  the  government  for  that  Parliament. 

The  French  Party  System. — In  France  the  many- 
party  system  prevails,  and  this  in  fact  is  the  usual  system 

'In  1918,  Parliament  was  prorogued  November  twenty-first  and 
the  election  was  held  on  December  the  fourteenth. 

'As  illustration  of  platform  methods  it  may  be  noted  that  in 
the  election  of  1918  the  campaign  was  opened  by  Lloyd  George  and 
Bonar  Law,  who  addressed  a  meeting  in  Central  Hall  and  soon 
afterwards  formally  printed  a  joint  statement  of  the  issues.  The 
non-coalition  Liberals  accepted  as  their  platform  a  declaration 
prepared  and  adopted  by  the  National  Liberal  Federation  at  Man- 
chester and  the  Laborites  issued  an  appeal  headed  "Labor's  Call  to 
the  People." 


328      THE  STATE  AND  GOVERNMENT 

on  the  Continent  and  elsewhere  outside  of  English- 
speaking  countries.  In  the  Chamber  of  Deputies  (the 
lower  house),  the  members  are  seated  around  a  semi- 
circular hall  and  that  part  of  the  circle  to  the  right  of 
the  chairman  is  known  as  the  Right,  the  opposite  as  the 
Left,  and  the  Central  between.  The  Right  is  made  of 
groups  of  royalists,  really  supporters  of  the  Republic, 
though  in  theory  sentimentally  attached  to  the  descend- 
ants of  the  three  former  reigning  families,  and  also  of 
the  most  conservative  of  the  avowed  supporters  of  the 
Republic.  The  Center  forms  a  bloc  of  moderate  con- 
servatives and  radicals,  who  on  the  whole  represent  the 
liberal  bourgeoisie,  or  commercial  manufacturing  ele- 
ment. The  Left  is  composed  of  a  number  of  socialistic 
factions  representing  the  demands  of  labor  and  of  doc- 
trinaires. 

Owing  to  the  factional  and  coalitional  aspect  of 
French  parties  they  are  not  systematically  organized  and 
they  make  little  effort  as  parties  or  coalitions  to  elect 
candidates.  Under  the  electoral  reform  law  of  1919, 
however,  the  old  single-district  system  is  abandoned  and 
a  general  ticket  system  based  on  departments,  or  de- 
partmental districts,  of  from  three  to  six  members  has 
been  adopted,  along  with  proportional  representation. 
This  method  distinctly  aims  to  encourage  parties  by  pro- 
viding that  on  the  ballot  candidates  be  arranged  under 
party  names.  The  results  of  the  election  of  November, 
1919,  showed  evidences  of  greater  stress  on  general  party 
lines  and  in  favor  of  the  larger  central  group  of  mod- 
erate republicans.  Each  candidate,  in  general,  aided  by 
his  friends  announces  his  own  platform  and  carries  on 
his  own  campaign,  so  that  candidacy  is  rather  a  personal 
affair,  save  that  each  is  supposed  to  stand  for  some 


POLITICAL  PARTIES  329 

fairly  definite  line  of  policy  so  as  to  be  classified  under 
one  or  other  of  the  numerous  parties.  The  chief  influ- 
ence in  elections  is  exerted  by  the  Administration,  which 
uses  pressure  so  as  to  have  elected,  if  possible,  deputies 
known  to  be  favorably  disposed.  The  outcome  of  an 
election  does  not  necessarily  indicate  at  once  who  will 
form  the  incoming  Ministry.  It  merely  shows  where 
the  general  balance  of  power  lies,  so  that  the  next  step 
is  for  the  meeting  of  the  several  factions  of  the  majority 
set,  the  center,  or  Moderates,  for  example,  combined 
with  the  least  radical  socialists,  so  as  to  agree  on  a  can- 
didate for  the  Premiership  and  on  a  division  of  the  other 
ministerial  offices  among  themselves.  The  list  when 
made  is  submitted  to  the  President  of  the  Republic  as  a 
recommendation  for  appointment. 

It  is  obvious  that  under  this  system  the  fall  of  a  Min- 
istry may  perhaps  be  due  to  an  adverse  vote  on  some 
fundamental  issue,  but  is  equally  as  likely  to  result  from 
some  disagreement  among  the  coalition  factions  and  a 
determination  on  their  part  to  dissolve  and  recombine  on 
somewhat  different  lines.4  The  interpellation,  or  demand 
for  explanation,  followed  by  a  vote  of  censure  or  in- 
dorsement, is  the  usual  method  of  ousting  Ministries. 

The  American  Party  System. — In  the  United 
States  of  America  the  higher  development  of  political 
life  and  the  early  rise  of  definite  issues,  such  as  those 
of  the  Constitution,  the  bank,  the  tariff,  and  slavery, 
resulted  quite  early  in  the  formation  and  development 
of  political  parties.  For  the  first  forty  years  of  national 
history  party  organizations  were  in  tKe  experimental 
stage,  but  in  1832  the  two  great  parties  each  adopted  with 
slight  variations  the  system  based  on  the  national  con- 

*  Cf.  R.  L.  Buell,  Contemporary  French  Politics. 


330      THE  STATE  AND  GOVERNMENT 

vention  and  this  mechanism  has  been  so  perfected  that  it 
stands  forth  as  the  acme  of  a  centralized  political  organi- 
zation. 

In  the  United  States  a  national  election  takes  place 
every  two  years  (in  November)  for  the  election  of  the 
Lower  House  of  Congress  and  one-third  the  Upper 
House,  or  Senate.  Every  four  years  elections  for  the 
Presidency  and  the  Vice-Presidency  are  also  held,5  so  that 
in  the  fourth  year  period  the  Congressional  and  Presi1 
dential  elections  are  combined.  Each  party  in  the  early 
summer  preceding  a  Presidential  election  calls  a  national 
convention  for  the  purpose  of  formulating  a  declaration 
of  principles  and  policy,  the  so-called  platform,  and  to 
nominate  candidates  for  the  two  executive  offices.  Con- 
gressional nominations  are  made  by  direct  primaries  or 
conventions  in  the  several  States,  and  these  are  managed 
by  State  committees  under  the  general  supervision  of  a 
Congressional  party  caucus  committee  appointed  every 
two  years  for  that  purpose.  Each  party  manages  its  cam- 
paign through  a  central,  or  national,  committee.  This 
committee  is  named  by  a  national  convention  made  up  of 
delegates  from  the  commonwealths.  These  are  appointed 
by  direct  primaries  or  by  State  conventions  made  up  of 
elected  delegates  chosen  in  the  first  instance  by  the  voters 
of  the  districts  or  townships  of  the  commonwealth.  In 
this  way  the  national  committee  is  theoretically  supposed 
to  voice  the  wishes  and  policy  of  the  party  voters  them- 
selves, and  in  its  work  uses  as  its  agents  the  various  local 
organizations  existing  in  the  several  commonwealths. 
Its  function,  therefore,  is  threefold:  (a)  to  cooperate 
with  the  States  so  as  to  secure  a  harmonious  body  of 

"The  formal  election  is  made  by  the  Electoral  Colleges  of  the 
States  on  the  second  Monday  in  January. 


POLITICAL  PARTIES  331 


workers  down  to  the  smallest  precinct  in  the  State; 
to  see  that  a  platform  is  adopted  and  Presidential  candi- 
dates named;  and  (c)  to  push  the  political  campaign  so 
as,  if  possible,  to  win  the  election  at  the  polls  in  Novem- 
ber. Because  of  the  importance  of  Congressional  elec- 
tions the  national  parties  become  also  State  parties,  and 
press  their  organization  down  to  the  primaries  so  as  to 
control  the  several  sets  of  delegates  who  ultimately  will 
name  the  Congressional  candidates. 

This  same  method  of  organization,  with  local  varia- 
tions, holds  true  of  the  several  States,  in  each  of  which 
there  is  a  party  state  committee  perfecting  its  organiza- 
tion, seeing  to  local  platforms  and  the  nomination  of 
candidates  and  directing  the  campaign  so  as  to  elect  the 
party  candidates  if  possible. 

The  Three  Contrasting  Types.—  These  three 
types  of  political  party  organization  represent  practically 
the  several  systems  of  organization  in  use  among  de- 
veloped nations.  The  American  type  is  the  most  complex 
and  the  most  highly  organized  and  centralized,  but  the 
powers  actually  exercised  by  the  organization  are  dele- 
gated by  the  voters  themselves,  who  by  theory  indirectly 
name  all  leaders  and  policies.  The  French  system  shows 
the  national  party  organization  to  be  an  artificial  unity, 
made  up  frequently  of  discordant  parts  not  always  in 
full  sympathy  with  their  elected  leaders  in  the  Ministry. 
The  real  power  lies  in  the  departments  and  the  local  dis- 
tricts, in  part  controlled,  however,  by  the  influence  of 
the  administration  and  the  Ministry  in  power. 

The  English  system  by  contrast  is  aristocratic  and 
takes  its  tone  from  the  will  of  its  national  leaders,  who 
have,  pushed  themselves  to  the  front  and  dictate  policy 
to  the  districts.  The  opinions  of  local  leaders,  however, 


332  THE  STATE  AND  GOVERNMENT 

must  always  be  taken  into  account,  in  order  that  there 
may  be  cheerful  and  enthusiastic  cooperation  on  their 
part  with  the  national  leadership  and  policy. 

Regulation  of  Parties. — Parties  are  properly  social 
organizations  and  not  part  of  the  legal  machinery  of  the 
government.  They  originate  or  disband  at  the  will  of 
their  members  and  are  not  mere  creations  of  law.  But 
so  important  are  these  modern  organizations  and  so 
necessary  for  the  successful  performance  of  govern- 
mental functions,  that  their  existence  has  become  a  neces- 
sity under  modern  conditions  and  they  are  in  effect  part 
of  the  unwritten  constitution,  since  they  are  the  formal 
means  devised  by  democracies  through  which  they  ex- 
press their  will  at  elections.  Admitting,  as  all  must,  the 
present  necessity  for  such  organizations,  it  becomes 
essential  that  public  opinion  should  see  to  it  that  the 
means  or  agency  devised  for  public  purposes  should  not 
be  made  ends  in  themselves  and  perverted  for  selfish 
purposes  and  private  gain.  This  tendency  is  especially 
marked  in  the  United  States  where  the  mechanism 
developed  is  so  efficient  that  if  "politicians"  by  chance 
should  secure  control  of  the  "machine/'  they  can  pass  to 
themselves  and  their  friends  an  endless  chain  of  offices, 
"graft"  on  public  funds,  and  incidentally  woefully  mis- 
manage public  business.6 

As  a  check  to  such  possibilities,  using  the  United  States 
as  an  example,  under  the  pressure  of  public  opinion, 
governments,  national,  state,  and  local,  have  little  by 
little  sought  to  regulate  political  parties  so  as  to  make 
them  honest  agencies  as  well  as  useful  aids  for  the  ex- 

*An  excellent  study  of  corrupt  methods,  written  in  a  style  in 
imitation  of  Machiavelli's  Prince,  may  be  found  in  The  Boss,  by 
H.  Champernowne. 


POLITICAL  PARTIES  333 

pression  of  popular  will.  The  extent  of  this  regulation 
is  worthy  of  notice.  The  government  as  a  rule  specifies 
the  time,  place,  and  manner  of  conducting  elections,  and 
regulates  the  primary  or  caucus.7  It  regulates  the  system 
of  nominations,  fixes  the  form  of  the  ballot  and  provides 
officers  to  supervise  the  polls  and  to  count  the  ballots. 
It  may  even  bear  the  expense  of  conducting  primaries 
and  polls,  and  usually  legislates  against  corruption  and 
bribery  and  limits  the  amount  of  legitimate  expenses. 
By  law  it  defines  what  are  political  parties,  what  persons 
may  exercise  suffrage  privileges  at  the  polls,  and  it  may 
also  define  how  party  members  must  register  so  as  to 
vote  at  the  party  primaries. 

Obviously  the  extent  of  regulation  will  vary  consid- 
erably in  different  states  and  commonwealths  according 
to  the  needs  of  local  situations,  but  the  necessity  of  some 
regulation  is  so  manifest  that  now  no  state  which  allows 
political  parties  to  exist  at  all  permits  them  to  act  with- 
out any  regulation  whatsoever.  The  regulations  now  so 
common  in  the  political  world  illustrate  the  fact  that  any 
social  organization,  whose  interests  become  of  general 
importance,  must  submit  to  governmental  regulation  for 
the  welfare  of  the  state. 

Proportional  Representation. — As  an  illustration 
of  one  aspect  of  regulation  attention  may  be  called  to 
requirements  for  minority  or  proportional  representa- 
tion, a  system  long  advocated  by  reformers  but  largely 
neglected  up  to  recent  years  because  no  system  suggested 
seemed  simple  enough  to  be  comprehensible  to  voters  and 

7  The  primary  is  the  initial  gathering  of  party  voters  to  decide 
on  candidates  or  measures.  A  non-partisan  primary  also  is  in  use, 
for  members  of  all  parties.  The  term  caucus  is  often  used  in  the 
sense  of  a  primary,  but  is  more  properly  a  gathering  of  party 
leaders  or  representatives  for  the  formulation  of  a  party  policy. 


334  THE  STATE  AND  GOVERNMENT 

readily  applied  by  those  in  charge  of  the  count.  The 
theory  back  of  the  reform  is  that  government  by  the 
majority,  though  far  better  than  minority  rule,  is  not  so 
democratic  as  rule  by  all  the  people  through  their  repre- 
sentatives. Minority  or  proportional  representation 
seeks  to  accomplish  this  aim  by  providing  a  form  of  elec- 
tion in  which  any  proper  proportion  of  the  electorate 
may  be  represented,  in  a  legislature  for  example,  by 
those  who  will  voice  its  desires.  This  is  considered  to 
be  a  device  for  the  improvement  of  legislatures,  as  an 
alternative  to  the  direct  method  of  the  initiative  and  ref- 
erendum. 

Omitting  reference  to  the  many  schemes  suggested,8 
each  of  which  has  or  has  had  its  supporters,  a  brief  state- 
ment will  be  made  of  the  two  systems  most  favored — 
the  preferential  or  Hare  system  and  the  Belgian  system 
as  worked  out  by  Professor  Victor  d'Hondt,  of  the  Uni- 
versity of  Ghent.9 

I.  The  Hare  System. — In  the  preferential  scheme  each 
voter  indicates  his  first,  second,  and  other  choices  among 
the  candidates  for  an  office.  In  the  count  the  officers  in 
charge  first  ascertain  the  quota  which  each  candidate 
must  receive  to  entitle  him  to  an  election  10  and  then  count 
first  choices  only.  Whenever  a  candidate  receives  a 
sufficient  number  of  votes  to  entitle  him  to  an  election, 
he  is  declared  elected  and  henceforth  other  ballots  having 
his  name  as  first  choice  are  counted  by  taking  their  second 
choices,  in  this  fashion  wasting  no  votes.  This  method 

8  See  for  many  of  these  Commons,  Proportional  Representation, 
and  John  H.  Humphries,  Proportional  Representation. 

9  For  detailed  illustrations  of  this  see  Seymour  and  Frary,  How 
the  World  Votes,  vol.  ii,  Chap.  XXIX  to  page  202. 

"This  is  done  by  dividing  the  whole  number  of  votes  cast  by 
the  number  of  offices  to  be  filled. 


POLITICAL  PARTIES  335 

is  followed  throughout  until  all  the  successful  candidates 
are  ascertained.  On  a  short  ballot  this  method  is  fairly 
simple  for  the  voter  and  not  hard  for  the  counter,  but 
naturally  would  prove  impossible  for  such  lengthy  ballots, 
as  are  commonly  used  in  the  United  States. 

II.  The  Belgian  System.— The  d'Hondt,  or  Belgian, 
system  requires  that  each  party  arrange  its  candidates 
on  the  ballot  in  the  order  of  importance,  for  the  reason 
that  the  successful  candidates  will  be  selected  from  the 
party  lists  in  the  order  of  arrangement.  The  voter  then 
merely  indicates  his  choice  of  parties  by  marking  the 
square  at  the  head  of  the  column,  although  provision  is 
made  for  "splitting  the  ticket"  if  desired.  In  the  count 
a  quotient  is  obtained  by  a  simple  mathematical  operation 
and  by  a  series  of  easy  divisions  the  results  are  declared 
speedily  and  assignments  made  to  the  respective  parties. 
This  system  is  simple,  speedy  in  operation,  and  will 
likely  win  favor  rapidly.  The  German  Republic  adopted 
the  system  for  its  first  national  election  (1919)  and 
found  it  to  work  admirably,  even  though  a  very  heavy 
vote  was  cast  through  adult  suffrage.  The  French  sys- 
tem of  1919  follows  in  the  main  the  Belgian  plan  but  a 
somewhat  different  mathematical  operation  is  performed 
in  arriving  at  the  result.11 

In  both  these  systems  the  general  ticket,  of  course, 
must  be  used  as  against  the  single-member  district  and 
this  also  has  its  distinct  advantages.  Great  Britain  is 
planning  experiments  in  the  direction  of  a  general  ticket 
by  arranging  that  boroughs  having  the  right  to  three  or 
more  members  in  the  House  of  Commons  shall  elect  by 

"Articles  descriptive  of  the  German  and  French  systems  may 
be  found  in  the  American  Political  Science  Review,  August,  1919, 
PP.  361-378  (Germany),  and  February,  1920,  pp.  117-123  (France). 


336  THE  STATE  AND  GOVERNMENT 

general  ticket  in  districts  of  from  three  to  five  members 
and  by  a  later  bill  these  will  probably  be  elected  by  some 
form  of  proportional  representation. 

It  seems  obvious  that  in  the  near  future,  some  of  the 
American  commonwealths  will  try  out  systems  of  general 
tickets  and  proportional  representation  and  presumably 
will  find  them  feasible  as  other  countries  have,  in  which 
case  other  commonwealths  will  speedily  imitate  the  suc- 
cessful experiments.  In  this  fashion  there  should  slowly 
creep  into  American  city  councils,  state  legislatures,  and 
administrative  boards  a  representation  of  minorities  as 
well  as  of  the  majority,  and  this  will  have  a  distinctly 
democratic  effect  on  the  political-party  system. 

Party  Issues. — The  issues  that  separate  political 
parties  are  generally,  though  not  always,  economic.  The 
state  is  so  important  a  factor  in  conserving  and  strength- 
ening economic  interests  that  these  eagerly  seek  to  have 
a  dominant  voice  in  governmental  policy.  Parties  as  a 
rule  tend  to  identify  themselves  with  one  or  several  kin- 
dred interests  so  as  to  secure  the  support  of  those 
engaged  in  such  economic  occupations.  There  will  regu- 
larly be  representation  of  such  interests,  for  example,  as 
those  of  the  landed,  or  farming,  interests,  or  commerce, 
manufacturing,  mining,  and  fishing;  or  there  may  be  a 
representation  of  economic  classes,  such  as  labor  parties 
with  a  platform  of  labor  reforms,  or  an  agrarian  move- 
ment such  as  the  former  Populist  party  of  the  United 
States  or  the  Non-Partisan  League  of  the  present;  or, 
again,  some  economic  policy  that  will  affect  numerous 
classes  may  be  under  discussion,  as  socialism  or  the  tariff 
or  questions  of  taxation  or  of  the  regulation  of  corpora- 
tions and  trusts.  Occasionally  there  may  be  special 
issues  of  temporary  importance  involving  questions  of 


POLITICAL  PARTIES  337 

religion,  morality,  education,  or  some  particular  phase 
of  international  policy  such  as  the  question  of  the  League 
of  Nations  in  the  campaign  of  1920.  But  these  issues  as 
a  rule  are  not  lasting  nor  are  they  broad  enough  to  form 
the  basis  for  a  permanent  national  organization. 

Again,  entirely  independent  of  the  particular  issues  at 
stake,  a  party  may  gain  strength  by  posing  as  a  repre- 
sentative of  conservatism,  favoring  a  policy  averse  to 
change,  and  thus  securing  the  support  of  those  who  pre- 
fer known  ills  to  possible  dangers.  On  the  other  hand, 
a  radical  aggressive  party  may  win  support  by  advocacy 
of  fundamental  changes,  on  the  ground  that  such  are  in 
the  line  of  progress.  As  a  rule,  it  will  be  found  that  the 
issues  involved  in  an  election  turn  either  on  the  main- 
tenance of  the  static  quo,  or  on  an  economic  question 
involving  the  clash  of  differing  interests. 


CHAPTER  XXI 

POLICIES  AND  ACHIEVEMENTS  OF  GOVERNMENT 

Polity  and  Policy. — The  preceding  chapters  have 
been  devoted  primarily  to  the  study  of  the  development 
and  differentiation  of  government  and  the  relationship 
between  it  and  the  state  with  its  sovereignty.  The  or- 
ganization in  which  the  various  departments  of  govern* 
ment  are  combined  into  a  systematic  whole  is  sometimes 
called  the  polity  of  the  state,  a  Greek  word  (TroXtrela) 
which  really  includes  also  the  notion  of  policy,  implying 
a  study  of  the  principles  underlying  governmental  action, 
having  reference  to  some  well  defined  aim  or  plan.  If, 
therefore,  a  person  understands  the  polity  and  policy  of 
his  State,  he  understands  his  government,  its  activities, 
its  ideals,  and  standards  of  action.  Fully  to  understand 
these  he  should  know  the  historical  development  of  the 
political  principles  underlying  national  history  and  the 
relation  of  these  to  the  larger  world  principles  of  politi- 
cal activity,  and  their  relation  to  the  principles  of  social 
organization  as  described  in  sociology. 

The  power  of  sovereignty,  of  course,  is  the  source 
from  which  governmental  agencies  derive  their  vigor, 
enabling  them  thereby  to  formulate  policies,  both  domes- 
tic and  international,  which  when  formulated  are  then 
put  into  action  through  the  proper  departments  of  gov- 
ernment. A  nation's  policies  may  include  many  petty 
policies  that  come  and  go  with  changing  currents  of  pub- 

338 


POLICIES  IN  GOVERNMENT  339 

lie  opinion,  but  underneath  these  are  bedrock  policies 
of  a  permanent  sort,  traceable  with  occasional  variations 
or  aberrations  through  generations  or  even  centuries  of 
national  history. 

Domestic  and  Foreign  Policies. — Such  policies  are 
fundamental  because  they  vitally  concern  the  life  and 
prosperity  of  the  nation.  Domestic  policies  aim  to  safe- 
guard citizens  in  their  lives  and  property  and  to  furnish 
to  them  enlarged  opportunities  for  the  pursuit  of  happi- 
ness. Foreign  policies  aim  to  safeguard  the  life  and 
property  of  the  nation  as  a  whole  and  to  furnish  oppor- 
tunities for  national  growth  and  national  welfare.  The 
world  may  be  considered  from  one  point  of  view  as  made 
up  of  states  suspicious  and  hostile  one  to  the  other.  Ad- 
mitting that  they  should  be  fraternal  in  their  relations 
and  hoping  that  in  time  they  may  become  so,  it  is  safer 
to  assume  an  attitude  of  distrust  and  to  be  on  guard 
against  attacks  from  powerful  rivals.  Every  state  hav- 
ing potential  enemies  must,  therefore,  formulate  policies 
aiming  to  safeguard  national  existence  and  to  secure 
opportunities  for  growth  in  population  and  national 
wealth. 

Properly  such  policies  should  conform  to  the  best 
national  ideals  and  be  in  harmony  with  world  standards 
of  ethical  conduct.  Unfortunately,  however,  the  prin- 
ciples embodied  in  Machiavelli's  teachings  are  favored 
by  nations  desirous  of  self-aggrandizement  at  the  expense 
of  their  neighbors,  so  that  too  often  such  states  use 
lower  moral  codes  in  dealing  with  other  states  than  they 
employ  in  their  domestic  policies.  Consequently  the 
policies  of  well  meaning  states  in  order  to  be  effective 
have  to  include  a  policy  of  preparedness  for  offensive  or 
defensive  warfare,  on  land  or  sea,  so  as  to  impress  on 


340      THE  STATE  AND  GOVERNMENT 

excessively  ambitious  states  the  danger  of  unwarranted 
aggression. 

Policies  Should  be  Understood  by  the  People. — A 
nation  with  well  formulated  policies  should  never  rest 
satisfied  with  the  mere  formulation  of  them.  They  must 
become  rooted  in  the  national  mind  through  education 
and  tradition,  and  national  action  should  closely  conform 
to  national  policy  so  that  the  nation  may  become  accus- 
tomed to  see  its  historic  policies  actually  exemplified  and 
applied  from  time  to  time  to  concrete  problems.  In  this 
way  a  state's  policy  will  strike  deep  root  into  the  every- 
day thinking  of  the  average  man,  so  that  his  reaction  to 
a  situation  will  become  well-nigh  automatic.  Such 
policies,  of  course,  undergo  slight  modifications  as  new 
conditions  and  newer  interpretations  of  national  destiny 
arise,  but  public  opinion,  guided  by  the  press,  readily 
adjusts  itself  to  these.  In  times  of  stress  rather  radical 
modifications  may  become  necessary,  and  under  such 
conditions  thorough  and  lengthy  periods  of  discussion 
should  indoctrinate  the  public  mind  with  the  newer 
aspects  of  the  situation.  In  this  way  the  natural  leaders 
of  the  people  will  incline  to  support  the  newer  modifica- 
tions, since  they  would  have  an  intelligent  appreciation 
of  their  importance  for  national  safety  and  welfare. 

If  a  nation's  interests  demand  that  its  policies  be 
understood  and  accepted  by  its  citizens,  obviously  every 
intelligent  citizen  should  seek  to  comprehend  them,  since 
his  prosperity  and  happiness  depend  on  his  keen  apprecia- 
tion of  their  value.  Especially  should  they  be  studied  by 
those  who  are  authorized  to  administer  the  power  of  the 
state,  since  upon  their  intelligent  comprehension  of 
national  policies  and  their  ability  to  formulate  modifica- 
tions of  these  when  necessary,  may  depend  consequences 


POLICIES  IN  GOVERNMENT  341 

bringing  weal  or  woe  to  the  nation.  A  double  obligation 
rests  upon  those  who  wield  the  sovereign  powers,  not 
of  an  ossified  or  degenerate  state  but  of  one  in  the  van 
of  political  progress — a  State,  like  the  United  States, 
standing  not  for  Machiavellian  principles  of  success  at 
any  price  but  for  broad  and  generous  platforms  based  on 
humanitarian  principles  and  a  profound  regard  for  the 
Golden  Rule. 

National  Preparedness. — One  must  not  forget, 
however,  that  all  nations  are  not  eager  for  world  peace 
and  fraternal  relationships.  He  should  remember  that, 
after  all,  national  and  human  ambitions  are  often 
strangely  sordid  and  wise  statesmen  should  not  endanger 
national  prosperity  by  investing  in  Utopian  rainbows  or 
in  international  gold  bricks.  Men  from  time  immemorial 
have  dreamed  of  the  Golden  Age  when  swords  shall  be- 
come plowshares,  and  spears  be  turned  into  pruning 
hooks,  but  Novicow  in  his  Essay  on  War  quoting  from 
various  authorities  says  that,  "From  the  year  1496  B.C. 
to  1861  A.D.,  in  3,357  years,  there  were  227  years  of 
peace  and  3,130  years  of  war,  or  thirteen  years  of  war 
to  every  year  of  peace.  Within  the  last  three  centuries 
there  have  been  286  wars  in  Europe.  From  the  year 
1500  B.C.  to  1860  A.D.  more  than  8,000  treaties  of  peace 
meant  to  remain  in  force  forever  were  concluded.  The 
average  time  they  remained  in  force  is  two  years." 

Under  such  circumstances  one  must  agree  with  Plato 
and  Aristotle  who  both  argued  that  however  desirable 
peace  is,  a  wise  state  will  always  be  prepared  for  war 
as  the  best  preventive  against  sudden  attack  by  an  un- 
scrupulous enemy,  for  as  Aristotle  added,  "People  sel- 
dom attack  those  who  are  well  prepared,"  or  as  Washing- 
ton put  it,  "To  be  prepared  for  war  is  one  of  the  most 


342      THE  STATE  AND  GOVERNMENT 

effectual  means  of  preserving  peace."  The  state,  as  it 
were,  stands  in  the  presence  of  its  fellow  states,  sword 
in  hand,  preferring  peaceful  policies,  but  ready,  if  neces- 
sary, for  war  in  defense  of  national  life  and  welfare. 
As  an  exponent  of  peace  the  state  should  base  its  policies 
on  the  eternal  principles  of  justice  and  fair  play  and 
through  its  diplomatic  agents,  through  treaties,  agree- 
ments, and  ententes,  should  endeavor  to  live  amicably  in 
the  international  world,  following  the  principle  of  live 
and  let  live.  But  when  there  arises,  as  Jefferson  put  it, 
"a  long  series  of  abuses,"  then  another  policy  becomes 
necessary,  the  statesman  gives  place  to  the  warrior,  apd 
armed  forces  strike  in  behalf  of  the  nation  so  as  to  bring 
to  the  arbitrament  of  battle  the  test  of  competing  systems 
and  policies. 

Thus  in  every  state  and  especially  in  a  democracy, 
where  in  the  long  run  public  opinion  determines  national 
decisions,  it  is  of  the  utmost  importance  that  citizen, 
statesman,  and  officer  in  army  or  navy  should  compre- 
hend the  national  policies  of  their  country,  so  that  in 
times  of  crisis  they  may  act  quickly  on  the  basis  of  com- 
mon understandings,  thereby  avoiding  the  waste  of  time 
involved  in  so-called  campaigns  of  education,  like  that  in 
the  United  States  from  1914-1917. 

Growth  of  Policy. — Policy  in  the  European  medi- 
aeval period  of  history  was  to  a  quite  large  extent 
dynastic  or  personal  in  character,  rarely  rising  to  the 
dignity  of  a  carefully  considered  national  policy.  But 
just  as  Grotius  in  1625  marked  a  new  era  in  law  and 
diplomacy  through  the  publication  of  his  famous  work, 
De  Jure  Belli  ac  Pads,  so  in  1648  the  Treaty  of  West- 
phalia marked  the  time  when  the  European  powers  took 
into  consideration  national  factors  of  geography,  race, 


POLICIES  IN  GOVERNMENT  343 

religion,  and  economic  interests  in  reaching  decisions  of 
international  policy.  The  Allied  Congress  of  1918-1919, 
irrespective  of  whether  its  work  was  well  or  poorly  done, 
will  surely  be  noteworthy  because  of  the  close  attention  it 
gave  to  geographic,  racial,  and  economic  considerations 
and  to  the  claims  of  nationality  based  on  common  cus- 
toms and  traditions.  The  emphasis  placed  on  such 
matters  by  this  notable  gathering  of  states  indicates 
clearly  that  the  permanent  policy  of  any  given  state  must 
rest  on  quite  similar  considerations.  It  is,  therefore,  not 
sufficient  to  teach  policy  as  merely  a  list  of  catalogued 
policies  each  defined  in  dictionary  form.  Every  particu- 
lar policy  should  be  shown  in  its  relations  to  other  and 
larger  policies  and  the  basis  and  history  of  these  should 
be  clearly  understood,  so  that  the  interested  citizen  or 
nation's  representative  will  absorb  the  spirit  of  national 
policy  and  be  able  intuitively  to  apply  principle  to  situa- 
tion. Great  Britain,  for  example,  has  had  for  centuries 
as  its  fundamental  policy  the  maintenance  of  its  suprem- 
acy on  the  seas  and  this  is  so  ingrained  in  the  British 
mind  that  national  action  with  that  end  in  view  is  well- 
nigh  automatic. 

American  Policy. — The  American  policy  corre- 
sponding to  this  is  the  Monroe  Doctrine,  broadening  out 
into  a  policy  of  Pan-Americanism,  the  most  fundamental 
and  most  important  of  all  its  policies.  Unfortunately 
domestic  policies  and  particular  interests  are  so  much 
better  comprehended  in  the  United  States  than  are  its 
international  policies,  that  too  often  larger  interests  have 
been  subordinated  to  immediate  interests,  perhaps  be- 
cause the  leaders  of  those  times  failed  to  grasp  the  under- 
lying principles  of  American  policy  and  hence  lacked 


344      THE  STATE  AND  GOVERNMENT 

insight  into  the  proper  solutions  for  the  problems  before 
them.1' 

Then,  too,  its  leaders  are  too  inclined  to  assume  that 
national  wisdom  began  and  ended  with  the  Revolutionary 
fathers,  whose  descendants  consequently  should  find  their 
whole  duty  in  a  static  devotion  to  the  teachings  of  the 
dead,  who  lived  in  a  petty  and  defenseless  state  before 
the  era  of  steam  or  electricity.  The  United  States,  how- 
ever, is  not  so  decrepit  with  age  that  it  can  live  only  on 
its  past  thought.  The  nation  is  still  filled  with  youthful 
vigor  and  has  a  forward  as  well  as  a  backward  look.  For 
that  reason  its  policies  are  expanding  policies,  broadening 
out,  so  as  to  meet  newer  conditions  and  situations,  so 
that  one  must  have  a  flexible  mind  properly  to  appreciate 
the  national  point  of  view.  The  little  Colonies  of  1776, 
scattered  for  the  most  part  along  the  Atlantic  coast,  with 
a  combined  population  less  than  that  of  Chicago  at  pres- 
ent, built  well  and  wisely  for  their  day,  but  they  them- 
selves would  have  been  the  first  to  admit  that  the  passing 
years  would  demand  a  broader  basis  and  a  wider  outlook. 

Basis  for  Policy. — As  a  very  brief  indication  of  the 
bases  from  which  policies  are  built  up  attention  may  be 
directed  to  the  conditions  that  tend  to  determine  policy, 
premising  with  the  statement  that  practically  static  con- 
ditions, or  a  situation  freed  from  the  danger  of  war, 
determine  one  line  of  policy,  and  a  dynamic  competitive 
system  necessitates  a  quite  different  policy,  since  the 
danger  of  war  must  always  be  taken  into  account.  In 
modern  times  isolated  or  neutralized,  protected  states 
represent  fairly  well  the  first,  and  the  second  is  repre- 

1  For  brief  studies  of  American  diplomacy  see  under  John  Bassett 
Moore,  John  H.  Latane,  and  Carl  R.  Fish  in  the  Bibliography, 
Sec.  II. 


POLICIES  IN  GOVERNMENT  345 

sented  by  the  average  state  environed  by  rival  states  not 
averse  to  war. 

The  Factors  of  Population  and  Land. — The  chief 
conditions  to  be  taken  into  account  are  the  factors  of 
population  and  land.  A  state  having  an  expanding  popu- 
lation on  a  limited  territory  must  plan  either  to  intensify 
its  industrial  life  through  manufactures  and  commerce, 
developing  thereby  an  urban  civilization  so  as  to  accom- 
modate its  increasing  population,  or  must  find  outlets 
for  the  excess  of  its  population  through  emigration, 
colonization,  or  the  forcible  seizure  of  neighboring  terri- 
tory. Failing  these  possibilities  a  policy  of  stationary 
population  through  "race  suicide"  methods  is  the  only 
alternative.  If  the  intensification  of  industrial  life  is 
emphasized,  then  trade  routes  must  be  opened  and  kept 
open  and  metal  ores  and  other  raw  material  must  be 
secured,  preferably  from  national  lands  if  possibte,  other- 
wise through  importations,  or  the  development  of 
colonial  possessions  having  such,  or  as  a  last  resort 
through  the  seizure  of  the  lands  of  weaker  powers  having 
the  needed  material.  If  a  policy  of  expansion  is  fol- 
lowed, conditions  determine  whether  this  be  peaceable, 
as,  for  example,  through  national  lands  hitherto  unutil- 
ized, or  by  taking  possession  of  uninhabited  or  thinly 
inhabited  parts  of  the  earth;  or,  on  the  other  hand, 
whether  the  expansion  be  through  aggressive  wars 
against  weaker  or  rival  states.  A  landward  expansion 
involves  a  stress  on  military  power,  but  an  expansion 
overseas  necessitates  sea  power  and  hence  a  reliance  on 
a  great  navy.  These  in  brief  are  the  fundamental  con- 
ditions on  which  policy  is  based,  though,  of  course,  there 
are  many  other  factors  such  as  racial  affiliation,  racial 
hatreds,  religious  differences,  and  distinctions  of  color, 


346      THE  STATE  AND  GOVERNMENT 

language,  and  type  of  civilization  that  enter  as  factors 
into  the  situation.  It  is  obvious  that  the  necessity  for  "a 
place  in  the  sun"  may  drive  a  state  into  an  aggressive 
policy  towards  its  neighbors.  It  is  for  such  reasons  that 
Machiavelli  and  his  modern  followers  urged  that  a  state 
in  its  foreign  policy  should  be  unmoral,  free  from  the 
ethics  of  social  existence,  using  the  Darwinian  code  of 
the  survival  of  the  fit  and  the  destruction  of  the  unfit  or 
weaker  competitors. 

Political  Contributions  of  Nations. — A  study  of 
policies  both  foreign  and  domestic  might  also  be  made 
by  noting  the  great  and  permanent  political  contributions 
accomplished  by  historic  nations  past  and  present.  Such 
contributions  in  the  main  represent  the  expression  of 
national  purpose  and  hence  are  clearly  allied  to  policies 
of  a  more  formal  sort  like  those  of  expansion  and  con- 
quest. 

It  would  be  rather  a  lengthy  task  to  try  to  estimate 
with  any  completeness  the  relative  contribution  of  the 
world's  great  historic  states  to  political  civilization,  so 
that  a  bare  sketch  only  will  be  given  as  a  suggestion.  It 
is  obvious,  for  example,  that  notwithstanding  the  rise 
and  fall  of  dynasties  and  the  passing  of  races,  there  de- 
veloped in  Egypt,  in  India,  on  the  plains  of  China  and 
Mesopotamia,  and  in  the  cities  and  harbors  of  Asia 
Minor,  great  patriarchal  and  commercial  empires  that 
fixed  the  fundamentals  of  government  and  state,  and 
that  the  petty  states  of  classical  times  inherited  from 
the  South  and  the  East  all  that  was  really  valuable  of  an 
obsolescent  civilization. 

In  the  Classic  Period. — In  Phoenicia,  the  most  modern 
of  ancient  Asiatic  governments,  and  in  Carthage  its  great 
colony,  in  Greece  and  in  Rome,  centered  the  contributions 


POLICIES  IN  GOVERNMENT  347 

of  preceding  ages,  as  each,  one  after  the  other,  assumed 
supremacy  and  made  its  own  offering  to  the  common 
stock.  From  the  first  three  came  that  emphasis  on  com- 
merce and  colonization  which  makes  a  modern  Britisher 
feel  perfectly  at  home  as  he  reads  of  the  expansion 
policy  of  these  nations;  Athens,  in  addition,  developed  a 
workable  alphabet  for  literary  purposes  and  through  its 
philosophers  taught  later  states  how  to  reason  about  the 
principles  of  government  and  to  work  toward  higher  and 
better  standards  of  political  life.  The  genius  of  Rome 
lay  by  contrast  in  its  emphasis  on  law  and  administration. 
By  the  aid  of  Greek  philosophy  it  enlarged  its  customary 
law  into  a  code  that  will  stand  for  many  future  centuries 
as  the  high-water  mark  of  attainment  in  respect  to  civil 
law  and  rights.  By  its  militaristic  energy  it  conquered 
and  brought  into  civilization  the  barbarian  tribes  of  the 
North  and  revivified  the  decadent  nations  of  Africa  and 
Asia  Minor.  By  its  administrative  and  centralizing 
capacity  it  developed  a  system  of  political  organization 
that  finds  its  best  expression  to-day  in  the  imperialistic 
hierarchy  of  the  Roman  Catholic  Church,  and  in  the 
highly  centralized  governmental  organizations  of  France 
and  Japan.  Through  the  Church,  the  Holy  Roman 
Empire,  and  the  numerous  commercial  cities  of  Italy, 
France,  and  the  Hanseatic  League,  the  civilization  of  the 
greater  Rome  was  continued,  differentiated,  and  finally 
welded  into  a  composite  of  many  aspects  through  its 
partial  adoption  by  the  many  jarring  nationalities  that 
now  occupy  Europe. 

Modern  Contributions. — From  England  in  mediaeval 
and  later  centuries  came  an  efficient  judicial  system,  a 
successful  colonial  policy,  and  a  Parliament  working  out 
through  a  joint  Cabinet  an  harmonious  cooperation  of 


348      THE  STATE  AND  GOVERNMENT 

executive  and  legislative  interests.  Through  its  devotion 
to  commerce  and  sea  power  it  has  expanded,  carrying  its 
civilization  into  every  quarter  of  the  globe,  and  will  hold 
the  world's  supremacy  as  long  as  it  can  dominate  the 
seas. 

France,  a  true  daughter  of  the  Roman  Empire,  as 
shown  by  its  capacity  in  war,  in  law,  and  in  administra- 
tion, came  to  the  front  in  a  new  role  at  the  end  of  the 
eighteenth  century,  set  fire  to  the  dry  tinder  of  European 
politics  and  intoxicated  the  political  world  with  the  in- 
spiration derived  from  the  Marseillaise,  and  the  ideals 
of  democracy  contained  in  the  motto,  Liberte,  Egalite, 
Fraternite.  This  influence  spread  through  western  and 
southern  Europe,  passed  to  the  Latin  colonies  in  South 
America,  rivaling  there  the  competing  influences  of  Spain 
and  the  United  States,  and  even  affected  in  the  latter 
country  the  policies  of  such  democratic  leaders  as  Jeffer- 
son and  Monroe. 

Germany  added  its  contribution  to  the  world's  civiliza- 
tion in  the  form  of  applications  of  scientific  principles  to 
governmental  organization  and  functions,  but  at  last  its 
vaulting  ambition  overleaped  itself,  and  like  Sisyphus, 
having  almost  reached  the  anticipated  goal  of  supremacy, 
it  must  start  again  to  push  upwards  from  the  bottom. 
Even  little  Switzerland  nestled  in  its  mountain  plains 
and  valleys,  by  conscientious  devotion  to  industry  and 
education  has  become,  as  it  were,  the  capital  of  the 
League  of  Nations,  houses  within  its  borders  the  homes 
of  numerous  international  unions  and  organizations,  and, 
by  its  experimentations  in  new  forms  of  democracy,  has 
profoundly  influenced  the  world  of  states. 

The  United  States  also  is  no  mean  factor  in  the  mod- 
ern political  world.  From  it  has  come  the  federation, 


POLICIES  IN  GOVERNMENT  349 

the  written  constitution,  an  expanding  democracy,  a 
highly  organized  system  of  political  parties,  and  with  it 
all  a  humanitarianism  cosmopolitan  in  its  scope,  aiming 
to  make  wide  applications  of  the  principles  of  democracy. 
This  development  has  been  greatly  aided  by  its  compara- 
tive freedom  from  the  danger  of  invasion,  its  system  of 
general  education,  and  the  inventive  capacity  of  its 
people,  devoted  to  the  development  of  a  large,  well 
watered,  fertile  land  rich  in  fuels  and  minerals.  Through 
these  achievements  the  nation,  with  its  composite  racial 
population,  is  deeply  impressing  its  governmental  type 
on  the  political  systems  of  the  world,  and  has  by  no 
means  yet  reached  the  height  of  its  powers.2 

Added  to  all  these  there  are  many  experiments  being 
made  in  odd  corners  of  the  earth,  such  as  in  Austra- 
lasia, Finland,  Scandinavia,  and  Switzerland,  so  that  the 
conviction  might  readily  grow  that  the  state,  in  its  gov- 
ernmental functioning  and  organization,  is  still  plastic, 
is  still  adapting  itself  to  newer  conditions  and  by  steady 
improvement  is  becoming  unquestionably  the  great 
agency  through  which  humanity  will  continue  to  accom- 
plish its  ends  of  social  development. 

New  Zealand. — As  an  illustration  of  a  domestic 
policy  of  what  may  be  called  a  commonwealth  of  the 
"newer  democracy"  the  social  legislation  of  what  some 
have  idealized  as  a  sort  of  antipodean  Utopia  may  be 
mentioned. 

New  Zealand  is  by  no  means  a  great  state,  nor  even 
in  itself  a  colony  3  of  international  importance,  yet  with- 
in its  borders  some  rather  radical  experiments  in  democ- 

"Note,  for  example,  how  W.  T.  Stead  was  impressed  by  what 
he  called  "The  Americanization  of  the  World." 

1  It  is,  since  1907,  the  Dominion  of  New  Zealand.  For  references 
on  the  government  of  New  Zealand  see  Sec.  IV  of  the  Bibliography. 


350      THE  STATE  AND  GOVERNMENT 

racy  are  at  present  being  carried  on.  This  group  of 
islands  is  comparatively  small,  having  an  area  about  that 
of  Colorado  or  Nevada.  Its  population,  all  told,  is 
slightly  over  a  million,  not  so  many  as  may  be  found 
within  the  borders  of  Connecticut.  The  chief  occupa- 
tions of  its  people  are  farming  and  grazing  supplemented 
by  manufactures  and  mining.  It  has  its  commerce  and 
is  in  close  touch  with  its  neighbors  in  Australia,  twelve 
hundred  miles  away,  and  with  the  mother  country, 
which  by  the  prestige  of  its  flag  shields  its  offspring  from 
many  international  complications  and  burdens.  In  this 
remote  corner  of  the  earth,  freed  from  the  fear  of  hostile 
attack,  with  natural  riches  and  a  population  over  ninety- 
eight  per  cent  British  by  birth  or  descent,  with  the 
suffrage  in  the  hand  of  every  adult  man  or  woman,  and 
a  virtually  autonomous  government,  English  individual- 
ism is  free  to  work  out  democratic  activities  which,  if 
they  prove  successful,  will  become  a  sort  of  pattern  for 
other  democracies. 

The  Domestic  Policy  of  New  Zealand. — Without 
commenting  on  the  success  or  failure  of  its  numerous 
experiments  in  legislation,  in  respect  to  which  references 
for  reading  will  be  found  in  the  Bibliography,  atten- 
tion may  be  directed  to  the  democratic  system  of  gov- 
ernment and  the  functioning  of  the  newer  democracy. 
Adult  suffrage  is  allowed  a  free  hand  by  careful  pro- 
visions for  free  nominations,  the  Australian  alphabetical 
secret  ballot,  effective  Corrupt  Practices  Acts  and  a  half- 
holiday  for  workers  on  election  day.  Civil  service  rules, 
non-partisan  politics,  and  official  responsibility  help  to- 
ward honest  administration.  The  government  owns  its 
railroads,  manufacturing  its  own  cars  and  locomotives; 
it  owns  steamship  lines,  telegraphs,  telephones,  coal 


POLICIES  IN  GOVERNMENT  351 

mines,  and  savings  banks,  a  parcels  post,  a  national  bank, 
and  a  loan  office  which  lends  money  on  easy  terms  and 
low  interest  to  the  citizens.  There  is  a  government  insur- 
ance company  competing  with  private  insurance  com- 
panies and  a  governmental  management  of  trust  estates. 
All  these  and  other  similar  undertakings  illustrate  the 
bewildering  variety  of  activities  carried  on  by  the  state. 
It  arbitrates  disputes  of  all  sorts,  guaranties  land  titles, 
simplifies  law,  furnishes  legal  advice  and  service  free 
or  at  low  rates,  serves  as  tourist  agent  for  travelers, 
establishes  model  farms,  and  teaches  scientific  farming. 
It  uses  the  probation  system  for  juveniles,  colonizes  its 
unemployed,  starting  them  in  business  as  farmers,  pro- 
vides pensions  for  the  aged,  and  is  seeking  to  abolish 
abject  pauperism  altogether.  It  serves  as  agent  for  its 
farmers,  keeps  their  goods  in  cold  storage  when  neces- 
sary and  sells  them  in  London,  charging  only  commission 
at  cost.  It  aims  to  establish  a  minimum  wage,  a  short- 
hour  day  and  has  eliminated  sweat  shops;  it  carefully 
regulates  the  labor  of  women  and  children,  has  efficient 
sanitation  laws  for  manufacturing  establishments  and 
shops,  and  has  a  remarkably  low  death  rate.  It  directly 
employs  its  own  force  in  the  construction  and  main- 
tenance of  public  works,  and  stimulates  industry  on  the 
part  of  its  workers  by  cooperative  methods.  It  is  abol- 
ishing the  slums  by  inducing  urbanites  to  move  toward 
the  outskirts  and  into  the  country,  and  by  helping  work- 
ingmen  to  build  homes  by  loans  at  low  interest.  Its 
cities  are  attractive  with  parks  and  playgrounds  and  pri- 
vate residences  vie  one  with  the  other  in  adorning  their 
homes  and  grounds.  Education  is  emphasized  and  is  for 
the  most  part  free.  There  is  no  state  church,  and  no 
state  aid  is  given  to  any  religious  body.  The  govern- 


352      THE  STATE  AND  GOVERNMENT 

ment  seeks  to  equalize  opportunity  for  all,  to  diffuse 
wealth,  and  to  discourage  the  rise  of  millionaire  fortunes. 
Its  ideal  is  a  land  of  plenty  without  pauperism  or  exces- 
sive luxury,  where  healthy  bodies  and  well  trained  minds 
may  become  normal  and  furnish  the  basis  for  continued 
prosperity. 

Whether  this  experiment  in  democracy  will  succeed  is 
still  a  problem.  Certainly  the  economic  and  racial  con- 
ditions of  New  Zealand  are  favorable,  and  its  safety 
from  international  complication  seems  assured.  If  its 
government  continues  to  plan  wisely  on  the  basis  of  a 
carefully  prepared  and  well  balanced  budget,  and 
strengthens  in  every  possible  way  the  morality  and  in- 
telligence of  its  citizens,  there  seems  no  inherent  reason 
why  it  may  not  become  "Newest  England"  in  a  large  and 
prophetic  sense. 

This  social  legislation  was  enacted  chiefly  during  the 
period  from  1884  to  1910.  Little  progress  has  been 
made  since,  if  any,  owing  to  the  setback  of  the  Great 
War  and  to  a  growing  antagonism  between  labor  and 
capital,  the  latter  of  which  naturally  resists  vigorously 
attacks  on  profits  or  on  the  growth  of  capitalism.  The 
inhabitants  of  New  Zealand  themselves  are  by  no  means 
convinced  that  they  live  in  paradise  and  sometimes  look 
longingly  towards  the  seemingly  better  clover  fields  far- 
ther on.  Their  social  legislation  did  not  come  as  the 
result  of  broad  visions,  working  constructively  towards  a 
carefully  planned  program.  In  fact,  it  is  surmised  that 
their  outlook  is  provincial  and  because  of  that  fact  they 
simply  sought  to  eliminate  from  their  little  Dominion  the 
harsher  aspects  of  life,  to  work  together  cooperatively  as 
near  neighbors,  and  also  followed  the  natural  British 
tendency  to  "clean  up"  and  have  an  attractive  home, 


POLICIES  IN  GOVERNMENT  353 

socially,  economically,  and  from  the  standpoint  of  solid 
comfort.  Its  experiments,  before  they  can  be  consid- 
ered successful,  should  stand  a  generation  or  two,  and 
when  transplanted  to  larger  nations  must  be  able  to  show 
adaptability  to  a  rapidly  changing  environment.  Yet 
after  all  is  said,  the  legislative  experiments  of  New  Zea- 
land and  of  the  kindred  Dominion  of  Australia  are  fur- 
nishing extremely  valuable  suggestions  to  the  larger 
democracies  of  the  Americas  and  Europe. 


CHAPTER  XXII 

GROWTH  OF  DEMOCRACY 

The  People. — If  by  the  term  people  is  meant  the 
collective  mass  of  population  domiciled  within  a  state, 
the  relation  of  these  to  the  state  is  obvious;  they  are  its 
subjects,  owing  it  obedience  and  allegiance.  But  they 
are  not  mere  subjects;  they  are  citizens  also,  for  they 
have  rights  as  well  as  obligations.  After  all,  the  only 
justification  for  the  existence  of  a  sovereign  state  must 
be  found  in  its  helpfulness  and  utility  to  its  people.  It 
owes  to  its  citizens  protection  and  aid  in  their  struggle 
for  betterment  in  life.  Every  citizen  may  demand  that 
much  from  his  state,  and  should  rightly  feel  aggrieved 
if  it  fails  to  do  its  part.  Yet  the  failure  of  the  state  to 
do  its  part  has  been  the  problem  of  the  ages  and  will 
probably  remain  so  for  many  years  to  come.  States  do 
not  satisfy  the  demands  of  their  subjects  in  these  re- 
spects, and  indeed  governments  have  seldom  admitted 
that  they  were  in  duty  bound  so  to  do.  The  reason  for 
this  difference  of  opinion  is  not  far  to  seek.  Govern- 
ments have  regularly  been  aristocratic  in  the  sense  that 
the  power  of  the  state  has  rested  in  comparatively  few 
hands.  The  members  of  this  ruling  class  always  assume 
that  they  have  a  sort  of  inherent  if  not  divine  right  to 
rule,  either  because  of  the  quality  of  their  birth  or  their 
wealth  or  their  intelligence.  As  rulers,  they  also  assume 
that  they  are  entitled  to  the  best  and  largest  share  of 

354 


GROWTH  OF  DEMOCRACY  355 

the  comforts  of  life,  and  that  this  share  should  first  be 
secured  before  much  thought  be  given  to  the  well-being 
of  the  other  members  of  the  community.  This  attitude 
of  mind  is  observable  in  all  parts  of  the  world  and  in 
all  kinds  of  civilization.  The  wise  and  the  strong  natu- 
rally win  the  rewards  of  life,  and  it  is  assumed  that  the 
weak  and  the  lowly  should  be  content  with  bare  sub- 
sistence. 

The  Ideal  of  Democracy. — On  the  other  hand,  the 
democratic  ideal  of  citizenship  has  always  had  advocates. 
Whether  "all  men  are  created  equal"  or  not,  seems  not  so 
important  as  the  question  whether  all  men  can  become 
equal;  and,  if  so,  whether  they  should  not  be  given  the 
opportunity  to  attain  equality.  Religion  has  endeavored 
to  answer  by  assuring  men  of  their  equality  in  heaven 
or  in  God's  sight,  but  men  rather  seem  to  prefer  their 
equality  on  earth,  possibly  so  as  to  be  the  better  prepared 
for  it  in  the  other  world.  Governments  have  so  regu- 
larly favored  inequality  that  some  political  theorists l 
hold  that  equality  will  become  possible  only  when  the 
compulsory  aspects  of  government  are  abolished.  Be- 
lievers in  the  utility  of  the  state  who  also  advocate 
equality,  argue  that  it  can  best  be  obtained  through  the 
proper  regulation  and  utilization  of  governmental  agen- 
cies. Whether  governments  will  remain  aristocratic  or 
ultimately  become  democratic  is,  however,  a  question  for 
future  settlement.  Yet  for  a  proper  understanding  of 
the  tendency  towards  democracy  and  the  conditions  that 
affect  this  tendency,  a  short  sketch  of  the  development  of 
the  democratic  idea  may  be  of  service. 

Three  Historic  Forms  of  Democracy. — We  may 
distinguish,    on    the   whole,    three   historical    forms    of 
1  Anarchists  and  individualists. 


356      THE  STATE  AND  GOVERNMENT 

democracy :  (a)  tribal  or  communal  democracy,  common 
among  all  savage  and  barbarian  peoples  and  prevalent 
in  the  earlier  forms  of  village  life;  (b)  conservative  de- 
mocracy, based  on  economic  capacity  and  intelligence, 
and  found  generally  among  commercial  communities; 
(c)  radical  democracy,  dominated  by  ideals  of  human 
equality,  seeking  to  bestow  political  privileges  irrespec- 
tive of  race,  sex,  or  social  conditions. 

I.  Tribal  Democracy. — In  primitive  hordes  and  in  the 
early  patriarchal  period,  so  far  as  their  systems  can  be 
understood  to-day,  there  prevailed  in  their  political  or- 
ganizations a  rude  sort  of  democracy,  based  on  the  right 
of  every  capable  adult  male  to  participate  in  important 
decisions.  Numerous  illustrations  of  this  exist  to-day 
among  savage  tribes  and  in  village  communal  life  as 
observed  in  Russia,  India,  and  China.  Women  generally 
had  what  may  be  called  civil  rights  in  life,  property,  and 
family,  and  at  times  even  had  political  rights  when  heads 
of  families.2  There  was,  however,  a  growing  tendency 
for  a  woman  to  merge  her  legal  personality  into  that  of 
brother,  father,  or  husband.  Likewise  the  development 
of  a  body  of  elders  composed  of  heads  of  families  and 
powerful  chieftains  tended  to  develop  a  class  of  persons 
having  peculiar  privileges  and  unusually  large  govern- 
mental powers.  Through  war  came  slavery  and  a  con- 
sequent servile  class  without  rights,  mere  living  imple- 
ments of  labor  classified  along  with  cattle,  according  to 
Aristotle.  The  multiplication  of  wealth  in  the  form  of 
flocks,  herds,  slaves,  and  landed  interests  accentuated  and 
fixed  social  distinctions.  Thus  developed  a  system  in 
which  privileged  classes  of  noble,  learned,  and  wealthy 
men  exercised  all  political  power,  forming  the  electorate 
aln  the  Russian  Mir,  for  instance. 


GROWTH  OF  DEMOCRACY  357 

of  their  respective  states.  Below  these  were  citizens  and 
freemen,  having  no  well  defined  political  rights,  but  with 
customary  civil  rights  of  life,  property,  and  family,  al- 
though these  were  not  carefully  safeguarded  against  the 
tyranny  or  despotism  of  the  ruling  class.  At  the  bottom 
of  the  scale  were  freedmen  and  resident  aliens  having  a 
few  civil  rights,  and  a  vast  mass  of  slaves  with  prac- 
tically no  rights  whatsoever. 

II.  Conservative  Democracy. — The  next  stage  of 
development  came  with  the  rise  of  commerce  and  indus- 
tries. Through  these  occupations  arose  from  the  lower 
classes  wealthy,  brainy  men,  too  important  to  be  ignored 
in  the  governmental  system,  who  slowly  acquired  larger 
civil  rights  and  some  share  in  political  power.  If  this  form 
of  wealth  and  influence  increased  so  as  to  overbalance 
in  importance  landed  wealth,  it  became  the  really  efficient 
factor  in  the  state,  sharing  powers  with  the  older  privi- 
leged classes,  and  developing  thereby  a  sort  of  democ- 
racy; a  democracy,  however,  in  which  the  mass  of  the 
population — slaves,  freedmen,  and  resident  aliens — had 
no  voice.3 

In  those  early  days  popular  democracy  in  the  modern 
sense  would  have  been  impossible.  Citizenship  regularly 
implied  racial  kinship ;  there  was  no  system  of  naturaliza- 
tion except  through  the  awkward  method  of  adoption. 
Furthermore,  slavery  was  looked  on  as  a  natural  and 
proper  condition  for  inferior  and  conquered  races,  and 
no  theorist  was  rash  enough  to  suggest  that  such  persons 
should  be  freed  and  have  governmental  powers  placed  in 
their  hands.  Consequently,  when  the  states  of  the  classi- 

*  The  reforms  of  Solon  in  Athens  recognizing  a  middle  class,  or 
bourgeoisie^  and  the  prominence  of  the  equites  (modern  capitalists 
and  industrial  leaders)  in  Rome  are  illustrations. 


358      THE  STATE  AND  GOVERNMENT 

cal  period  placed  the  suffrage  in  the  hands  of  those 
who  were  citizens  by  right  of  birth,  even  though  these 
numbered  a  small  minority  of  the  population,  they  be- 
lieved that  they  had  the  most  liberal  possible  form  of 
government,  and  in  their  theories,  as  manifested  in  classi- 
cal political  writings,  set  up  their  systems  as  the  ideal  of 
political  development. 

III.  Radical  Democracy. — Many  causes  contributed 
to  the  development  of  a  larger  idea  of  democracy.  The 
Stoic  and  the  Christian  teaching  of  human  rights,  indi- 
viduality, and  brotherhood,  and  the  extension  of  Roman 
citizenship  throughout  the  civilized  world  tended  to  dig- 
nify the  individual  and  to  discountenance  slavery,  espe- 
cially as  this  institution  was  losing  its  economic  impor- 
tance through  the  rise  of  a  system  of  vassalage.  The 
economic  development  of  western  mediaeval  Europe  along 
lines  of  commerce  and  manufactures  emphasized  the  need 
of  a  more  energetic  laborer  than  the  slave  or  the  serf,  as 
a  necessary  factor  in  this  development;  and  the  increase 
of  general  intelligence  through  the  printing  press  and 
commercial  intercommunication  helped  to  bring  about  a 
condition  in  which  the  privileged  classes  became  relatively 
less  useful  to  the  state  and  began  to  lose  their  monopoly 
of  political,  social,  and  intellectual  privileges.  When 
slavery  and  its  modified  form,  serfdom,  had  disappeared 
from  the  larger  part  of  Europe,  and  when  militarism  and 
dogmatic  authority  had  yielded  place  to  commercialism 
and  intellectual  flexibility,  modern  democracy  became 
possible  and  slowly  began  to  push  its  way  into  the  gov- 
ernmental systems  of  Europe. 

It  is  well  to  note  that  the  democratic  movement  of  the 
earlier  stages  is  fundamentally  not  along  humanitarian 
lines.  It  is  simply  the  desire  of  the  more  capable  part 


GROWTH  OF  DEMOCRACY  359 

of  the  masses,  who  were  called  into  a  life  of  larger  activ- 
ity through  the  economic  demand  for  intelligence  and 
business  acumen,  to  secure  for  themselves  a  share  in 
governmental  power.  Their  interests  demanded  it,  and 
they  were  willing  to  fight  for  it  if  necessary.  But  every 
advance  they  made  afforded  a  larger  place  for  those  im- 
mediately below  them.  As  long  as  there  was  an  increas- 
ing demand  for  more  intelligent  labor,  the  supply  was 
forthcoming;  and  as  it  came,  it  sought  after  political 
power.  This  power  was,  of  course,  the  means  to  an  end. 
Men  desired  to  be  secured  in  their  rights  and  possessions, 
and  knew  that  these  would  be  safer  as  they  gained 
a  larger  voice  in  government. 

The  rapid  development  of  machinery  in  the  eighteenth 
and  nineteenth  centuries  stimulated  a  demand  for  labor 
of  any  sort,  and  all  men  became  important  in  industrial 
countries.  Stress  ceased  to  be  placed  on  birth  or  rank 
but  rather  on  the  capacity  for  intelligent  work.  The  free 
farming  lands  of  the  American  Colonies  also  called  for 
workers  and  gave  men  opportunity  to  show  enterprise 
and  intelligence  in  the  cultivation  of  the  soil.  Through- 
out this  period,  therefore,  developed  a  strong  emphasis 
on  man  as  man ;  all  alike,  it  was  argued,  should  have  op- 
portunities to  attain  wealth  and  power.  Stoic  philosophy 
is  the  form  of  the  theory  of  natural  rights,  and  Christian- 
ity with  its  ancient  emphasis  on  equality  and  fraternity 
again  came  to  the  front  in  support  of  this  new  condition. 
The  result  was  a  new  sort  of  democracy.  Heretofore 
political  power  had  developed  pan  passu  with  economic 
capacity,  but  then  began  a  tendency  to  give  political 
power  irrespective  of  economic  capacity.  If  men  were 
created  equal,  as  the  theory  was,  they  ought  to  have  po- 
litical equality  at  least,  on  the  assumption  that,  by  the 


360  THE  STATE  AND  GOVERNMENT 

aid  of  the  ballot,  every  man  could  win  his  proper  place 
in  the  social  system. 

Contrasts  between  Conservative  and  Radical 
Types  of  Democracy. — These  two  theories  of  de- 
mocracy are  still  in  conflict.  The  one  argues  that  the 
possession  of  political  power  should  be  based  on  an  in- 
telligent economic  capacity;  the  other  argues  that  every 
adult,  even  every  woman,  should  have  the  ballot,  in  or- 
der to  win  rights  and  build  up  a  capable  personality. 
From  the  first  come  laws  demanding  intelligence  tested 
by  an  educational  qualification,  and  economic  capacity 
tested  by  the  possession  of  taxable  property.  From  the 
other  come  demands  that  the  ballot  be  placed  in  the  hands 
of  every  person,  including  the  enfranchised  slave,  the 
illiterate  peasant,  and  the  unskilled  laborer  relying  on  his 
muscle  for  daily  bread. 

The  materialistic  democracy  of  the  one  easily  develops 
ideals  of  the  other  through  its  emphasis  on  broad  knowl- 
edge and  intellectual  capacity.  Every  commercial  era  is 
regularly  accompanied  by  Utopian  dreams  of  a  still 
broader  civilization,  when  every  man  will  count  as  one 
and  all  men  alike,  irrespective  of  birth,  will  have  oppor- 
tunity to  develop  the  best  that  is  within  them,  and  to  at- 
tain any  station  to  which  their  capacity  entitles  them  to 
aspire.  Along  such  lines  dreamed  Plato  in  commercial 
Athens,  the  Christians  and  Stoics  under  Roman  sway,  Sir 
Thomas  More  in  the  Tudor  period,  the  Levellers  of 
Cromwell's  time,  and  the  philosophers  of  the  social  con- 
tract during  the  last  three  centuries.  The  social  dreams 
of  agricultural  communities  are  anarchistic,  like  Tol- 
stoi's, but  commercial  communities  develop  socialistic 
Utopias  like  that  in  Edward  Bellamy's  Looking  Back- 
ward and  Eqwlity. 


GROWTH  OF  DEMOCRACY  361 

Underlying  Principles. — In  this  development  of  de- 
mocracy the  working  of  two  principles  is  evident:  (a) 
an  economic  condition  that  demands  in  its  workers  ca- 
pacity and  intelligence  will  tend  to  bestow  political  rights 
on  such  men;  (b)  broad,  ethical,  idealistic  principles,  like 
that  of  human  brotherhood,  may  influence  a  community 
in  such  a  way  that  a  government  may  create  by  law  a 
condition  of  political  equality  and  then  purposively  strive 
to  raise  the  social  and  economic  standards  of  its  people, 
that  they  may  exercise  with  efficiency  the  political  powers 
placed  in  their  hands. 

Generally  speaking,  four  great  influences  have  con- 
tributed toward  this  end : 

1.  The  marvelous  development  in  the  use  of  machin- 
ery, which  began  in  the  last  half  of  the  eighteenth  cen- 
tury in  England  and  which  completely  revolutionized  the 
entire  economic  life  of  civilization. 

2.  The  social  contract  theories  of  the  British- Ameri- 
can and  the  French  revolutions  and  the  political  influences 
that  followed  from  the  establishment  of  the  American 
republic  and  through  the  French  theories  of    liberty, 
equality,  and  fraternity. 

3.  The  great  religious  movements  of  the  eighteenth 
and     nineteenth     centuries,     which     stimulated     social 
virtues   and   emphasized   the   common   brotherhood   of 
humanity. 

4.  The  rise  of  a  system  of  free  common  schools  and 
of  higher  education  and  a  remarkable  multiplication  of 
scientific  knowledge. 

Economic  changes  gave  the  conditions,  religion  and 
education  stimulated  and  trained  the  mind,  and  political 
theories  taught  men  how  to  hold  fast  and  to  strengthen  by 
political  devices  what  had  been  won  for  civilization. 


362      THE  STATE  AND  GOVERNMENT 

Democracy  Based  on  Intelligence. — These  great 
influences  show  that  real  democracy  comes  through  in- 
creased mentality  and  implies  a  highly  developed  civili- 
zation. For  this  reason  it  affects  the  whole  of  social  life, 
not  simply  the  political  aspect  of  it.  Democracy  means 
that  in  economic  life  no  man  should  be  born  into  a  con- 
dition of  economic  slavery;  not  that  every  person  should 
be  fed  and  supported  at  public  expense,  but  that  he 
should  have  opportunity  to  develop  his  capacity  for  work 
in  whatever  field  seems  best  suited  to  his  personality. 
This  involves  a  far  vaster  and  wiser  system  of  education 
than  any  that  yet  exists.  Plato,  in  his  Republic,  rightly 
assumed  that  the  chief  object  of  government  was  the 
proper  training  of  its  citizens.  No  governmental  expen- 
diture brings  such  tangible  returns  as  that  for  education. 
Educational  systems  are  yet  in  their  infancy  and  largely 
mechanical  and  unscientific  in  their  operations;  but  per- 
fection cannot  be  attained  in  a  day  nor  through  a  corps 
of  poorly  trained,  wretchedly  paid  teachers. 

The  Japanese  in  their  war  with  Russia  clearly  showed 
that  scientific  training  is  an  essential  element  in  a  war 
campaign.  Material  resources  and  a  mere  form  of  equal- 
ity will  never  bring  about  national  supremacy;  nor  does 
success  ultimately  lie  with  military  prestige  and  fighting 
capacity.  Broad  knowledge,  scientific  training,  and  a 
farsighted  vision  are  needed  in  order  to  develop  a  peo- 
ple able  to  accomplish  any  task  placed  before  them.  De- 
mocracy ultimately  depends  on  that  kind  of  training,  and 
economic  supremacy  in  the  twentieth  century  will  be 
attained  by  that  state  which  spends  its  treasures  most 
freely  in  the  wise  education  of  its  citizens. 

International  Aspects  of  Democracy. — The  influ- 
ence of  the  modern  spirit  of  democracy  is  well  illustrated 


GROWTH  OF  DEMOCRACY  363 

in  the  broader  national  aspects  of  modern  states.  An- 
cient states,  in  their  relations  bne  to  the  other,  were 
narrow  and  intolerant.  They  were  suspicious  of  one 
another's  motives,  treacherous  in  their  dealings  and  con- 
sidered war  to  be  their  natural  condition.  Temporarily 
the  Great  War  has  plunged  the  nations  into  a  situation 
not  unlike  that  of  former  centuries  and  general  distrust 
and  hatred  are  only  too  evident.  Yet  after  all  civilization 
as  a  whole  makes  no  backward  steps.  Since  the  develop- 
ment of  the  democratic  spirit,  international  law  and  di- 
plomacy have  developed  new  attitudes  of  mind. 
Commercial  needs  and  treaties  necessitate  joint  agree- 
ments among  states,  which  meet  in  international  con- 
gresses, discuss  matters  of  general  interest,  and  agree  on 
broad  principles  of  policy.  Joint  action  is  taken  when- 
ever possible,  rival  interests  are  adjusted  and  harmonized 
by  arbitration  and  mediation ;  wars  are  kept  from  spread- 
ing by  careful  diplomacy,  and  the  stern  terms  of  peace 
dictated  by  a  conquering  state  must  in  the  long  run  be 
modified  so  as  to  meet  with  the  moral  approval  of  dis- 
interested states.  Through  the  process  of  naturalization 
citizenship  assumes  a  new  form.  By  joint  agreement  of 
states  a  person  now  may  withdraw  from  his  parent  state, 
forswear  allegiance  to  it,  and  secure  citizenship  in  the 
state  of  his  choice.  If  in  his  new  home  he  prefers  to 
retain  his  natural  citizenship,  he  will  be  as  carefully  safe- 
guarded in  his  rights,  though  an  alien,  as  any  citizen  of 
the  land.  This  great  privilege,  when  granted,  is  rapidly 
breaking  down  narrow  racial  barriers,  as  citizens  of 
many  states,  and  persons  of  different  races,  mingle  in 
social  and  business  life,  exchange  ideas,  intermarry,  and 
develop  a  cosmopolitan  race  and  civilization  that  ulti- 
mately may  banish  the  spirit  of  suspicion  and  war. 


364      THE  STATE  AND  GOVERNMENT 

Democracy  in  Domestic  Policy. — In  their  internal 
policy  states  where  democracy  prevails  rely  less  on  the 
clinched  fist  and  more  on  the  gray  matter  of  the  brain. 
Intelligence  at  home  is  a  guaranty  of  success  abroad. 
Service  in  consular  and  diplomatic  administration  in- 
creasingly depends  on  trained  and  proven  capacity.  The 
quality  of  the  personnel  of  the  civil  service  is  steadily 
rising  through  administrative  requirements;  improve- 
ments in  governmental  machinery  are  eagerly  sought  and 
tried,  and  legislation  is  losing  much  of  its  former  crude- 
ness  and  is  slowly  becoming  more  scientific. 

Social  Aspects  of  Democracy. — The  spirit  of  de- 
mocracy also  implies  a  kindlier  and  more  sympathetic 
religion  and  higher  standards  in  moral  life.  This  is 
shown  by  the  growing  humanitarianism  of  religion,  and 
the  rise  of  numerous  agencies  for  the  alleviation  and  ban- 
ishment of  human  suffering.  The  Red  Cross  organiza- 
tion with  its  broad  international  outlook,  constructive  as 
well  as  remedial,  is  an  illustration  of  philanthropic  trend. 
Criminal  codes  are  becoming  humane,  cities  are  vigor- 
ously pushing  the  betterment  of  vicious  conditions  in  so- 
cial life,  and  labor  organizations  countenanced  by  the 
state  are  working  earnestly  for  the  social  and  economic 
improvement  of  their  members.  Intellectual  develop- 
ment, freed  from  the  incubus  of  dogmatism,  has  broad- 
ened out  into  an  attempt  to  understand  the  whole  of  life, 
and  through  its  achievements  in  science  has  made  modern 
civilization  progress  by  leaps  and  bounds.  The  spiritual 
and  the  aesthetic  side  of  life  has  been  deepened  by  a  truer 
insight  into  ideals  of  harmony  and  beauty,  derived  from 
a  wider  experience  and  knowledge  of  physical  and  men- 
tal phenomena.  Life  for  the  average  man  in  a  democracy 
should  become  a  happier,  broader,  and  more  generous 


GROWTH  OF  DEMOCRACY  365 

existence  than  that  endured  by  his  fathers.  We  realize 
now  the  futility  of  the  old  belief  that  goodness  and  wis- 
dom are  innate  only  in  the  privileged  classes.  By  throw- 
ing open  the  opportunities  and  prizes  of  the  world  to  all 
men,  irrespective  of  birth,  latent  energy  and  capacity 
have  come  to  the  front.  One  needs  but  to  investigate  the 
pedigree  of  the  greatest  men  of  modern  times  to  see  that 
a  few  centuries  ago  the  ancestors  of  such  men  were  prob- 
ably slaves  and  serfs.  Had  old-fashioned  conditions  per- 
sisted, the  great  achievers  of  modern  civilization  would 
in  most  cases  be  humble  laborers  on  the  estates  of  some 
robber  baron.  The  real  aim  of  social  life  after  all  is  not 
to  develop  a  small  class  of  highly  developed  persons  of 
special  privileges,  but  rather  to  stimulate  through  the 
state  the  development  of  an  energetic,  intelligent,  citizen 
body  and  high  standards  of  social  life. 

It  should  be  evident,  therefore,  that  democracy  is  not 
merely  a  political  system ;  it  is  a  condition  for  human  de- 
velopment, an  ideal  of  social  life,  and  a  philosophic  atti- 
tude of  mind  in  regard  to  the  larger  interests  of  humanity 
as  a  whole.  In  its  larger  and  truer  aspects  it  implies  the 
possibility  of  the  attainment  of  higher  civilization.  In 
its  political  aspect  it  is  merely  the  means  whereby  men 
attain  real  democracy;  for  the  ballot  in  the  hands  of  an 
intelligent  electorate  is  an  Aladdin's  lamp,  which,  rightly 
used,  will  lay  at  its  feet  the  social  treasures  of  the  world. 

The  Trend  Toward  Democracy. — No  one  is  yet 
prepared  to  prophesy  the  outcome  of  the  movement  to- 
ward this  humanitarian  form  of  democracy.  In  quiet 
nooks  of  civilization,  such  as  in  the  Scandinavian  states 
and  in  Switzerland,  in  the  "Farther  West"  of  the  United 
States,  and  on  the  fringes  of  civilization  in  Australasia, 
may  be  found  the  vanguard  and  fighting  line  of  a  newer 


366      THE  STATE  AND  GOVERNMENT 

democracy.  Casting  precedent  to  the  winds,  the  govern- 
ments in  these  localities  are  pressing  to  a  logical  conclu- 
sion the  teaching  that  all  political  power  should  be 
exercised  directly  by  the  people  themselves.  In  these  ex- 
perimental laboratories  they  seem  to  be  trying  every  con- 
ceivable political  policy.  The  electorates  are  dictating 
the  principles  of  the  fundamental  law  and  are  working 
out  startling  policies  of  reform.  By  building  up  through 
careful  investigation  a  scientific  system  of  legal  regula- 
tion, they  hope  to  restrain  the  monopolistic  tendencies  of 
capital  and  to  elevate  standards  of  living  for  the  ''sub- 
merged tenth"  and  the  "depressed  classes."  For  these 
purposes  the  state  does  not  hesitate,  in  one  place  or  an- 
other, to  authorize,  as  necessity  demands,  governmental 
ownership  of  lands,  mines,  waters,  and  the  usual  agencies 
for  transportation;  nor  to  embark  in  all  sorts  of  busi- 
ness enterprises,  even  to  the  extent  of  lending  money  at 
low  rates  of  interest  to  its  citizens  and  serving  as  "mid- 
dle man"  for  them  in  the  disposal  of  their  products. 
These  regions  seem  more  anxious  to  abolish  pauperism 
and  crime  than  to  multiply  millionaires;  apparently  they 
listen  more  readily  to  the  demands  of  labor  than  to  the 
allurements  of  capital,  and,  strangely  enough,  seem  more 
interested  in  the  health  and  education  of  children  than 
in  their  exploitation  in  the  industries. 

Yet,  after  all,  these  commonwealths  combined  form 
but  a  petty  fraction  of  human  society,  and  on  the  face  of 
it  there  seems  no  possibility  that  such  iridescent  visions 
of  democracy  can  ever  dominate  the  idealism  of  Western 
civilization  as  a  whole.  Progress  as  a  rule  goes  on  halt- 
ing feet  and  with  leaden  step.  And  yet,  if  ever  "young 
men  see  visions/'  there  may  come  into  their  hearts  an 


GROWTH  OF  DEMOCRACY 

enthusiasm  for  a  newer  civilization  founded  on  justice 
and  intelligence.  Then  these  seemingly  rash  and  well- 
nigh  chimerical  experiments  in  democracy  may  pass  into 
history  as  the  silver  lining  of  the  clouds  that  hid  a 
brighter  day  for  mankind. 


BIBLIOGRAPHY 

The  following  lists  include  some  of  the  more  impor- 
tant books  in  English  that  bear  on  the  general  and  special 
topics  of  this  text.  In  many  of  these  works  may  be 
found  numerous  references  and  bibliographies  of  other 
books  equally  important,  so  that  the  student  or  reader 
will  be  at  no  loss  for  supplementary  reading. 

I.     GENERAL  WORKS,  THEORY  AND  HISTORY 

ADAMS,  Brooks : 

The  Law  of  Civilization  and  Decay.    New  York,  1897. 

The  New  Empire.    New  York,  1902. 

The  Theory  of  Social  Revolutions.    New  York,  1913. 
AUSTIN,  John : 

Lectures  on  Jurisprudence,  fourth  ed.    Two  volumes. 

1873. 
BAGEHOT,  Walter: 

Physics\  and  Politics  (1873)  revised  ed.     New  York, 

1900. 
BLUNTSCHLI,  Johann  Kaspar: 

The  Theory  of  the  State,  third  ed.    Oxford,  1901. 
BONDY,  William: 

The  Separation  of  Governmental  Powers.     Columbia 
University  Series  of  History,  Economics  and  Public 
Law,  vol.  v.    New  York,  1896. 
BORGEAUD,  Charles: 

Rise  of  Modern  Democracy.    London  and  New  York, 

1894. 

Adoption   and   Amendment   of   Constitutions.      New 
York,  1895. 


370      THE  STATE  AND  GOVERNMENT 

BOSANQUET,  Bernard: 

The  Philosophical  Theory  of  the  State.    London  and 

New  York,  1899. 
BRYCE,  James : 

The  Holy  Roman  Empire,  revised  ed.     London  and 

New  York,  1904. 
Studies  in  History  and  Jurisprudence.    Two  volumes. 

Oxford  and  New  York,  1901-4. 
BUCHER,  Karl: 

Industrial  Evolution,  translated  by  S.  Morley  Wickett. 

New  York,  1901. 
BURGESS,  John  W. : 

Political  Science  and  Constitutional  Law.     Two  vol- 
umes.   Boston,  1890-1. 
CARLYLE,  A.  J. : 

History  of  Mediaeval  Political  Theory  in  the  West. 

Three  volumes.    New  York,  1903-16. 
CLARKE,  R.  Floyd : 

The  Science  of  Law  and  Lawmaking.     1898. 
COKER,  Francis  William: 

Readings  in  Political  Philosophy.    New  York,  1914. 
CUNNINGHAM,  William: 

Essay  on  Western  Civilization  in  Its  Economic  As- 
pects.   Two  volumes.      Cambridge  and  New  York, 
1898-1900. 
DEALEY,  James  Quayle : 

Sociology,  Its  Development  and  Applications.     New 

York,  1920. 

The  Family  in  Its  Sociological  Aspects.    Boston,  1912. 
DELISLE,  Burns  C. : 

Political  Ideals.    Oxford,  1915. 

The  Morality  of  Nations.     London  and  New  York, 

1916. 
DODD,  Walter  Fairleigh: 

Modern  Constitutions.    Two  volumes.    Chicago,  1909. 
DUGUIT,  Leon: 

Law  in  the  Modern  State,  translated  by  F.  and  H. 
Laskl    New  York,  1919. 


BIBLIOGRAPHY  371 

DUNNING,  William  Archibald: 

History  of  Political  Theories.     Three  volumes.     New 

York,  1902-1905.    Third  volume  in  press. 
FIGGIS,  John  N. : 

Divine  Rights  of  Kings,  second  ed.    Cambridge,  1914. 

From  Gerson  to  Grotius,  second  ed.    Cambridge,  1916. 
FOLLETT,  M.  P. : 

The  New  State.    New  York,  1918. 
FORD,  Henry  Jones : 

The  Natural  History  of  the  State.    Princeton,  1915. 
FREEMAN,  E.  A. : 

Federal  Government.    London,  1863. 
GARNER,  James  W. : 

Introduction  to  Political  Science.    New  York,  1910. 
GEFFCKEN,  Heinrich: 

Church  and  State,  translated  by  Edward  F.  Taylor. 

Two  volumes.    London,  1877. 
GETTELL,  Raymond  G. : 

Introduction  to  Political  Science.    Boston,  1910. 

Problems  in  Political  Evolution.    Boston,  1914. 
GIDDINGS,  Franklin  Henry: 

Principles  of  Sociology,  second  ed.    New  York,  1896. 

Democracy  and  Empire.    New  York,  1900. 

The  Responsible  State.    Boston,  1918. 
GIERKE,  Otto: 

Political  Theories  of  the  Middle  Ages,  translated  by  F. 

W.  Maitland.    Cambridge,  1900. 
GOODNOW,  Frank  J. : 

Comparative    Administrative    Law.      Two    volumes. 

New  York,  1893. 
GRAHAM,  Wallas : 

Human  Nature  in  Politics.    Boston,  1909. 

The  Great  Society.    New  York,  1915. 
GUMPLOWICZ,  Ludwig: 

Sociologie  und  Politik.    Leipzig,  1882. 

Der  Rassenkampf.    Innsbruck,  1883. 
HAMMOND,  Basil  E. : 

Bodies  Politic  and  Their  Governments.     Cambridge, 


372      THE  STATE  AND  GOVERNMENT 

HART,  Albert  Bushnell: 

Introduction   to  the  Study  of  Federal   Government. 

Boston,  1891. 
HOBHOUSE,  L.  T. : 

Soicial  Evolution  and  Political  Theory.     New  York, 

IpX'f. 
The  Metaphysical  Theory  of  the  State.     New  York, 

1918. 
HOLLAND,  Thomas  Erskine: 

The  Elements  of  Jurisprudence,  twelfth  ed.    Oxford, 

1917. 
JENKS,  Edward: 

Law  and  Politics  in  the  Middle  Ages.     New  York, 

1898. 

The  State  and  the  Nation.    New  York,  1919. 
KELLY,  Edmond: 

Government   or   Human    Evolution.      Two   volumes. 

New  York,  1900. 
LASKI,  Harold  J. : 

Studies  in  the  Problem  of  Sovereignty.    New  Haven, 

1917. 

Authority  in  the  Modern  State.    New  Haven,  1919. 
LEACOCK,  Stephen  Butler: 

Elements  of  Political  Science.    Boston,  1906. 
LECKY,  William  E.  H. : 

Democracy  and  Liberty.    Two  volumes.    New  York, 

1896. 
LEE,  Guy  Carleton: 

History  of  Jurisprudence.    New  York,  1900. 
LIEBER,  Francis: 

Miscellaneous  Writings,  edited  by  T.  D.  Woolsey.  Two 

volumes.    Philadelphia,  1911. 

Political  Ethics.    Two  volumes.    Philadelphia,  1911. 
LOBINGIER,  Charles  S. : 

The  People's  Law.    New  York,  1909. 
LORIA,  Achille: 

The  Economic  Foundations  of  So\ciety,  translated  by 
Lindley  M.  Keasbey.    New  York,  1899. 


BIBLIOGRAPHY  373 

Economic  Causes  of  War,  translated  by  J.  L.  Garner. 

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MCKECHNIE,  William  Sharp: 

The  State  and  the  Individual.    Glasgow,  1896. 
MACKINNON,  James : 

A  History  of  Modern  Liberty.    Three  volumes.    Lon- 
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MAINE,  Henry  James  Sumner: 

Ancient  Law  (1870),  tenth  ed.    London,  1906. 
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1871. 

Early  History  of  Institutions.    New  York,  1875. 
MERRIAM,  C.  Edward: 

History  of  the  Theory  of  Sovereignty  Since  Rousseau. 
Columbia  University  Series  of  History,  Economics 
and  Public  Law,  vol.  xii.    New  York,  1900. 
MICHEL,  Henry: 

L'idee  de  I'Etat  [Social  and  political  theories  in  France 
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MICHELS,  Robert: 

Political  Parties,  translated  by  E.  and  C.  Paul.    New 

York,  1915. 
MORGAN,  Lewis  H. : 

Ancient  Satiety.    New  York,  1878. 
MORISON,  George  S. : 

The  New  Epoch:  As  Developed  by  the  Manufacture  of 

Power.    Boston,  1903. 
OPPENHEIMER,  Franz : 

The  State:  Its  History  and  Development  Viewed  Socio- 
logically, translated  by  John  M.  Gitterman.    Indian- 
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OSTROGORSKI,  M. : 

Democracy  and  the  Organization  of  Political  Parties, 
translated  by  F.  Clark.    Two  volumes.    London  and 
New  York,  1902. 
PATTEN,  Simon  N. : 

Development  of  English  Thought:  Study  in  the  Eco- 
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The  New  Basis  of  Civilization.    New  York,  1907. 


374      THE  STATE  AND  GOVERNMENT 

POLLOCK,  Frederick: 

Introduction  to  the  History  of  the  Science  of  Politics 

(1893),  new  ed.    New  York,  1911. 
RITCHIE,  David  G.  : 

Principles  of  State  Interference.    London,  1891. 

Natural  Rights,  third  ed.    New  York,  1916. 
ROBERTSON,  John  M.: 

The  Evolution  of  States.     London  and  New  York, 


ROGERS,  James  E.  Thorold  : 

Economic  Interpretation  of  History.    New  York,  1888. 
SCHERGER,  George  L.  : 

Evolution  of  Modern  Liberty.    New  York,  1904. 
SELIGMAN,  Edwin  R.  A.  : 

Economic  Interpretation  of  History.    New  York,  1903. 
SMITH,  Arthur  L.  : 

Church  and  State  in  the  Middle  Ages.    Oxford,  1913. 
SPENCER,  Herbert: 

Principles  of  Sociology.    Three  volumes.    New  York, 
1897. 

Mem  versus  the  State.    New  York,  1916. 
STIMSON,  Frederic  J.  : 

Popular  Lawmaking.    New  York,  1911. 
SUMNER,  William  G.  : 

Folkways.    Boston,  1907. 
TAGORE,  Rabindranath  : 

Nationalism.    New  York,  1917. 
VEBLEN,  Thorstein  B.  : 

Theory  of  the  Leisure  Class  [An  economic  study  of 
the  evolution  of  institutions],  last  ed.    1911. 

The  Instinct  of  Workmanship.    New  York,  1914. 

WlLLOUGHBY,  Westel  W.  : 

The  Nature  of  the  State,  last  ed.    New  York,  1907. 

Political  Theories  of  the  Ancient  World.    New  York, 

1903. 
WILSON,  Roland  K.  : 

The  Province  of  the  State.    London,  1911. 
WOOLSEY,  Theodore  D.  : 

Political  Science  (1878),  second  ed.  Two  volumes.  1886. 


BIBLIOGRAPHY  375 

II.    AMERICAN  GOVERNMENT 

ASHLEY,  Roscoe  L. : 

American  Federal  State.    New  York,  1902. 
BACON,  Charles  W. : 

The  American  Plan  of  Government.    New  York,  1916. 
BALDWIN,  Simeon  E. : 

The  American  Judiciary.    New  York,  1905. 

Modern  Political  Institutions.     Boston,  1898. 
BEARD,  Charles  A.: 

American  Government  and  Politics.    New  York,  1911. 

An  Economic  Interpretation  of  the  Constitution  of  the 

United  States.    New  York,  1913. 
BREWER,  David  J. : 

American  Citizenship.    New  York,  1902. 
BRYCE,  James: 

The  American  Commonwealth,  new  ed.    Two  volumes. 

New  York,  1910. 
CHILDS,  Richard  S. : 

Short  Ballot  Principles.    Boston,  1911. 
CLEVELAND,  Frederick  A.: 

Organized  Democracy.    New  York,  1913. 
and  BUCK,  Arthur  Eugene: 

The  Budget  and  Responsible  Government.    New  York, 

1920. 
CORWIN,  Edward  S. : 

The  President's  Control  of  Foreign  Relations.  Prince- 
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National  Supremacy.    New  York,  1913. 
CROLY,  Herbert: 

The  Promise  of  American  Life.    New  York,  1909. 

Progressive  Democracy.    New  York,  1914. 
DEALEY,  James  Quayle: 

Our  State  Constitutions.  Annals  of  the  American 
Academy  of  Political  and  Social  Science^  supple- 
ment, March,  1907.  Philadelphia. 

Growth   of  American  State   Constitutions.     Boston, 


376      THE  STATE  AND  GOVERNMENT 

DODD,  Walter  Fairleigh : 

The  Revision  and  Amendment  of  State  Constitutions. 

Baltimore,  1910. 
EVANS,  Eldon  C. : 

History  of  the  Australian  Ballot.    Chicago,  1917. 
FAIRLIE,  John  A. : 

The  National  Administration  of  the  United  States  of 

America.    New  York,  1905. 
Local  Government  in  Counties,  Towns,  and  Villages. 

New  York,  1906. 
FINLEY,  John  H.  and  SANDERSON,  J.  F. : 

American  Executive  and  Executive  Methods.     New 

York,  1908. 
FISH,  Carl  R. : 

Civil  Service  and  the  Patronage.    New  York,  1905. 
American  Diplomacy.    New  York,  1915. 
FITZPATRICK,  Edward  A. : 

Budget  Making  in  a  Democracy.    New  York,  1918. 
FOLLETT,  M.  P.: 

The  Speaker  of  the  House  of  Representatives,  revised 

ed.    New  York,  1904. 
FORD,  Henry  Jones : 

Rise  and  Growth  of  American  Politics.    New  York, 

1898. 
FRANC,  Alissa: 

Use  Your  Government.    New  York,  1918. 
FREUND,  Ernst: 

The  Police  Power.    Chicago,  1904. 
Standards  of  American  Legislation.    Chicago,  1917. 
GOODNOW,  Frank  J.: 

Principles  of  the  Administrative  Law  of  the  United 

States.    New  York,  1905. 
Principles  of  Constitutional  Government.    New  York, 

1916. 
HAINES,  Charles  G. : 

The  American  Doctrine  of  Judicial  Supremacy.    New 
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BIBLIOGRAPHY  377 

HILL,  David  Jayne : 

The  Peoples  Government.    New  York,  1915. 

Americanism.    New  York,  1916. 
HILL,  John  P. : 

The  Federal  Executive.    Boston,  1916. 
HINSDALE,  Mary  L.: 

A  History  of  the  Presidents  Cabinet.     Ann  Arbor, 

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HOLCOMBE,  Arthur  N. : 

State  Government  in  th#  United  States.    New  York, 
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HOWE,  Frederic  C: 

Wisconsin,  an  Experiment  in  Democracy.    New  York, 
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JAMES,  Herman  G.: 

Local  Government  in  the  United  States.     New  York, 

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JAMESON,  John  Alexander: 

The  Constitutional  Convention,  fourth  ed.     Chicago, 
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JONES,  Chester  L. : 

Readings  on  Parties  and  Elections  in  the  United  States. 

New  York,  1912. 
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KALES,  Albert  M. : 

Unpopular  Government  in  the  United  States.     Chi- 
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KETTLEBOROUGH,  Charles  (compiler) : 

The  State  Constitutions.    Indianapolis,  1918. 
KIMBALL,  Everett: 

The  National  Government  of  the  United  States.    Bos- 
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LATANE,  John  H. : 

From  Isolation  to  Leadership.    New  York,  1918. 
The  United  States  and  Latin  America.     New  York, 
1920. 


278      THE  STATE  AND  GOVERNMENT 

LEARNED,  Henry  Barrett  : 

The  Presidents  Cabinet.    New  Haven,  1912. 
MCCARTHY,  Charles: 

The  Wisconsin  Idea.    New  York,  1912. 
McCoNACHiE,  Lauros  G.  : 

Congressional  Committees.    New  York,  1898. 
MCLAUGHLIN,  Andrew  C.  : 

The  Courts,  the  Constitution  find  Parties.     Chicago, 

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MACY,  Jesse  : 

Political  Parties  in  the  United  States.     New  York, 
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Party  Organization  and  Machinery.    New  York,  1912. 
MATHEWS,  John  M.  : 

Principles  of  American  State  Administration.     New 

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MERRIAM,  C.  Edward: 

American  Political  Theories.    New  York,  1903. 

American  Political  Ideas.    New  York,  1920. 
MIYAKAWA,  Masuji: 

Powers  of  the  American  People,  second  ed.     New 

York,  1908. 
MOORE,  John  Bassett: 

The  Principles  of  American  Diplomacy.    New  York, 

1918. 
MUNRO,  William  B.  : 

Government  of  the  United  States.    New  York,  1919. 

ORMAN,  Ray  P.: 

Political  Parties  and  Practical  Politics.     New  York, 


OSTROGORSKI,  M.  : 

Democracy  and  the  Party  System  of  the  United  States. 

New  York,  1910. 
PORTER,  Kirk  H.: 

A  History  of  Suffrage  in  the  United  States.    Univer- 

sity of  Chicago,  1918. 
REINSCH,  Paul: 

American  Legislatures.    New  York,  1907. 


BIBLIOGRAPHY  379 

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The  Citizen's  Part  in  Government.    New  York,  1911. 
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RUSSELL,  Alfred: 

The  Police  Power  of  the  State.    Chicago,  1900. 
SCHAFF,  Philip: 

Church  and  State  in  the  United  States.     1888. 
SLOANE,  William  M.: 

Party  Government  in  the  United  States  of  America. 

New  York,  1914. 
STANWOOD,  Edward: 

A  History  of  the  Presidency  [to  1909].    Two  volumes. 

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STIMSON,  Frederic  J. : 

Handbook  to  the  Labor  Laws  of  the  United  States. 

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Law  of  the  Federal  and  State  Constitutions.    Boston, 

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American  Constitution.    New  York,  1908. 
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Four  Aspects  of  Civic  Duty.    New  Haven,  1906. 
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TAYLOR,  Hannis: 

Jurisdiction  and  Procedure  of  the  Supreme  Court  of 

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380      THE  STATE  AND  GOVERNMENT 

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The  New  American  Government  and  Its  Work.    New 
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III.    FOREIGN  GOVERNMENTS 

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BAKER,  F.  Grenfell : 

The  Model  Republic,  a  History  of  the  Rise  and  Prog- 
ress of  the  Swiss  People.    London,  1895. 
BARKER,  E. : 

Political   Thought  of  Plato  and  Aristotle.    London, 

1906. 

Greek  Political  Theory.    London,  1918. 
BARKER,  J.  Ellis: 

The  Rise  and  Decline  of  the  Netherlands.     London, 

1906. 
BLAUVELT,  Mary  Taylor: 

The  Development  of  Cabinet  Government  in  England. 

New  York,  1902. 
BOTSFORD,  George  W.: 

The  Roman  Assemblies.    New  York,  1909. 
BROOKS,  Robert  C. : 

Government  and  Politics  of  Switzerland.    New  York, 
1918. 


BIBLIOGRAPHY  381 

BUELL,  Raymond  Leslie: 

Contemporary  French  Politics.    New  York,  1920. 
CAINE,  Hall: 

The  Little  Manx  Nation.    New  York,  1891. 
DOWELL,  Stephen: 

History  of  Taxation  and  Taxes  in  England.    Four  vol- 
umes.   1884. 
FEILDEN,  Henry  St.  C. : 

A  Short  Constitutional  History  of  England,  third  ed. 

Oxford,  1895. 
GARDINER,  S.  R.: 

Constitutional  Documents  of  the  Puritan  Revolution. 

Oxford,  1889. 
GOOCH,  George  P. : 

History  of  English  Democratic  Ideas  in  the  Seven* 

teenth  Century.    Cambridge,  1898. 
GRAHAM,  William: 

English  Political  Philosophy.    London,  1899. 
GREENIDGE,  A.  H.  J. : 

Greek    Constitutional    History.      London    and    New 

York,  1896. 
GUM  MERE,  Francis  B. : 

Germanic  Origins.    London,  1892. 
HANOTAUX,  Gabriel: 

Contemporary   France,  translated   by   Tarver,   J.   C. 

Four  volumes.    New  York,  1903-9. 
HILL,  David  Jayne: 

History   of  European   Diplomacy.     Three   volumes. 

New  York,  1905-1914. 
HUTCHINSON,  Robert  H. : 

The  "Socialism"  of  New  Zealand.    New  York,  1916. 
ILBERT,  Courtenay: 

Legislative  Methods  and  Forms.    Oxford,  1901. 
The  Mechanics  of  Lawmaking.    New  York,  1914. 
INDERWICK,  F.  A. : 

The  Kingfs  Peace  [Historical  Sketch  of  the  English 
Law  Courts].    London  and  New  York,  1895. 


382  THE  STATE  AND  GOVERNMENT 

JEBB,  Richard: 

Imperial  Conference:  A  History  and  a  Study  [from 
1887].     Two  volumes.     London   and    New  York, 
1911. 
JENKS,  Edward: 

Parliamentary  England;  the  Evolution  of  the  Cabinet 

System.    New  York,  1903. 
Short  History  of  English  Low.    Boston,  1912. 
JEPHSON,  Henry: 

The  Platform:  Its  Rise  and  Progress.    Two  volumes. 

London  and  New  York,  1891. 
JOHNSTON,  Harry  H. : 

The  Colonization  of  Africa.    Cambridge,  1899. 
KOVALEVSKY,  Maxime: 

Modern  Customs  and  Ancient  Lams  of  Russia.    Lon- 
don, 1891. 
LLOYD,  Henry  D. : 

Newest  England:  New  Zealand.    New  York,  1900. 
A  Sovereign  People  [Switzerland].    New  York,  1907. 
Low,  Sidney : 

The  Governance  of  England.    London,  1904. 
LOWELL,  A.  Lawrence: 

Governments  and  Parties  in  Continental  Europe.  Two 

volumes.    Boston,  1896. 
The  Government  of  England.    Two  volumes.     New 

York,  1912. 
Governments  of  France,  Italy,  Germany.    Cambridge, 

1914. 

Greater  European  Governments.    Cambridge,  1918. 
LUSK,  Hugh  H. : 

Social  Welfare  in  New  Zealand.    New  York,  1913. 
MACCUNN,  John: 

Ethics  of  Citizenship,  third  ed.    Glasgow,  1896. 
McGovERN,  William  Montgomery : 

Modern  Japan:  Its  Political,  Military,  and  Industrial 
Organization.    New  York,  1920. 


BIBLIOGRAPHY  383 

MACY,  Jesse: 

The  English  Constitution.    New  York,  1904. 
MACY,  J.  and  GANNAWAY,  John  W. : 

Comparative  Free  Government.    New  York,  1916. 
MARRIOTT,  J.  A.  R. : 

Second  Chambers.     London,  1910. 
English  Political  Institutions.    Oxford,  1913. 
MORE-*,  William  C: 

Outlines  of  Roman  Law,  revised  ed.    1914. 
OGG,  Frederic  Austin: 

The  Governments  of  Europe,  revised  ed.    New  York, 

1920. 
PALEY,  Arthur  P. : 

The  Federal  Systems  of  the  United  States  and  the 

British  Empire.    Boston,  1913. 
PARSONS,  Frank: 

The  Story  of  New  Zealand.    Philadelphia,  1904. 
PIKE,  Luke  Owen: 

Constitutional  History  of  the  House  of  Lords.    Lon- 
don and  New  York,  1894. 
POINCARE,  Raymond: 

How  France  Is  Governed,  translated  by  Bernard  Miall. 

New  York,  1914. 
PORRITT,  Edward  and  Mrs.  A.  G.: 

The  Unreformed  House  of  Commons:  Parliamentary 
Representation  Before  1832.    Two  volumes.     Cam- 
bridge, 1903. 
Evolution  of  the  Dominion  of  Canada:  Its  Government 

and  Its  Policies.    New  York,  1918. 
RIDGES,  Edward  Wavell: 

The  Constitutional  Law  of  England.    London,  1905. 
SEEBOHM,  Frederic: 

The  English  Village  Community,  fourth  ed.    London, 

1890. 

Tribal  Custom  in  Anglo-Saxon  Law.    London,  1902. 
SEELEY,  John  R. : 

Expansion  of  England.    Cambridge,  1883. 


384      THE  STATE  AND  GOVERNMENT 

SEYMOUR,  Charles  and  FRARY,  Donald  P.: 

How  the  World  Votes.     Two  volumes.     Springfield, 

Mass.,  1918. 
SHERMAN,  Charles  P.: 

Roman  Law  in  the  Modern  World.    Three  volumes. 

Boston,  1917. 
SIDGWICK,  Henry: 

Development  of  European  Polity.    London  and  New 

York,  1903. 
SKOTTOWE,  B.  C. : 

A  Short  History  of  Parliament.     Oxford  and  New 

York,  1887. 
SMITH,  G.  Barnett: 

History  of  the  English  Parliament.     Two   volumes. 

London,  1892. 
SOHM,  Rudolf: 

Institutes  of  Roman  Law,  translated  by  J.  C.  Ledlie. 

Oxford,  1892. 
STEARNS,  John  M. : 

Germs  and  Development  of  the  Laws  of  England. 

New  York,  1889. 

STOUT,  Robert  and  STOUT,  J.  Logan: 
'New  Zealand.    Cambridge,  1911. 
STUBBS,  William: 

The  Constitutional  History  of  England:  In  Its  Origin 
and  Development,  fifth  ed.     Three  volumes.     Ox- 
ford, 1891. 
TAYLOR,  Hannis: 

Origin  and  Growth  of  the  English  Constitution.    Two 

volumes.    Boston,  1889-98. 
TEMPERLEY,  Harold  W.  V.: 

Senates  and  Upper  Chambers.    London,  1910. 
TORRENS,  W.  M. : 

History  of  Cabinets.     Two  volumes.     London,  1894. 
WILLOUGHBY,  William  F. : 

The  Government  of  Modern  States.    New  York,  1919. 
WILSON,  Woodrow: 

The  State,  revised  ed.    Boston,  1911. 


BIBLIOGRAPHY  385 

IV.     MISCELLANEOUS  TOPICS 

BADEN -POWELL,  B.  H. : 

Origin  and  Growth  of  Village  Communities  in  Indict. 

London,  1899. 
BLOCK,  I.  S.: 

The  Future  of  War,  translated  by  R.  C.  Long.    New 

York,  1899. 
BRISSENDEN,  Paul  F.: 

The  I.   W.   W.;  a  Study  of  American  Syndicalism. 

New  York,  1919. 
BROOKS,  John  G. : 

American  Syndicalism.     New  York,  1913. 
COMMONS,  John  R.: 

Proportional  Representation,  second  ed.     New  York, 

1907. 
DAY,  Clive: 

A  History  of  Commerce.    New  York,  1907. 
DEL  MAR,  Alexander : 

History  of  the  Precious  Metals.     London,  1880. 
History  of  Money  in  Ancient  Countries.     London, 

1885. 

DYER,  Louis: 

Machiavelli  and  the  Modern  State.    Boston,  1904. 
FERRI,  Enrico: 

Criminal  Sociology.     New  York,  1900. 
FOWLER,  W.  Warde: 

The  City  State.    New  York,  1893. 
FUSTEL,  de  Coulanges: 

The  Ancient  City.    Boston,  1874. 

Origin  of  Property  in  Land,  translation  by  Margaret 

Ashley,  second  ed.    London,  1892. 
GONNE,  George  Laurence: 

The  Village  Community.    1890. 
HALL,  William  E. : 

International  Law,  seventh  ed.    London,  1912. 
HARPER,  R.  F.  (editor)  : 

The  Code  of  Hammurabi.    Chicago,  1904. 


386      THE  STATE  AND  GOVERNMENT 

HOURWICH,  Isaac  A. : 

The  Economics  of  a  Russian  Village.    Columbia  Uni- 
versity Series   of   History,   Economics   and   Public 
Law,  vol.  ii.    New  York,  1892. 
HUMPHREYS,  John  H. : 

Proportional  Representation.     London,  1913. 
INGRAM,  John  Kells: 

History  of  Slavery  and  Serfdom.    London,  1895. 
IRELAND,  Alleyne: 

Tropical  Colonization.    New  York,  1899. 

Far  Eastern  Tropics.    Boston,  1905. 
JELLINEK,  Georg: 

Declaration  of  the  Rights  of  Man  and  of  Citizens, 

translated  by  Max  Farrand.    New  York,  1901. 
KELLER,  Albert  Galloway: 

Homeric  Society.    New  York,  1902. 

Colonization.     Boston,  1908. 

Societal  Evolution.    New  York,  1915. 
KIDD,  Benjamin: 

The  Control  of  the  Tropics.    London  and  New  York, 
1898. 

Principles  of  Western  Civilization.    New  York,  1902. 
KOLLER,  Armin  H.: 

The  Theory  of  Environment.    Menasha,  Wis.,  1918. 
LEA,  Henry  C. : 

Superstition  and  Force,  third  ed.    Philadelphia,  1878. 
LESSER,  M.  A. : 

History   of   the  Development   of   the  Jury  System. 

Rochester,  1894. 
LETOURNEAU,  Charles: 

Property,  Its  Origin  and  Development.    London,  1892. 
MAHAN,  Alfred  T. : 

The  Influence  of  Sea  Power  upon  History.     Boston, 

1890. 
MORRIS,  Henry  C. : 

History  of  Colonization.    Two  volumes.    New  York, 
1900. 


BIBLIOGRAPHY  387 

NICOLAI,  G.  F. : 

The  Biology  of  War,  translated  by  C.  A.  and  J.  Grande. 

New  York,  1918. 
Novicow,  Jacques: 

War  and  Its  Alleged  Benefits,  translated  by  Thomas 

Seltzer.    New  York,  1911. 
OPPENHEIM,  L.: 

International  Law.    Two  volumes.    New  York,  1905. 
REINSCH,  Paul  S. : 

Colonial  Government.    New  York,  1902. 
Public  International  Unions.    Boston,  1911. 
ROUSSEAU,  Jean  Jacques: 

The  Social  Contract,  translated  by  Rose  M.  Harring- 
ton.   New  York,  1893. 
RUEMELIN,  Gustav: 

Politics  and  the  Moral  Law,  translated  by  Rudolf 

Tombo.    New  York,  1901. 
RUSSELL,  Robert: 

First  Conditions  of  Human  Prosperity.    London  and 

New  York,  1904. 
SEMPLE,  Ellen  C. : 

Influences  of  Geographic  Environment.     New  York, 

1911. 
SMITH,  Russell: 

Harrington  and  His  Oceana.    Cambridge,  1914. 
SPENCER,  Baldwin  and  GILLEN,  F.  J. : 

Native  Tribes  of  Central  Australia.    London,  1899. 
STEPHEN,  Leslie: 

Hobbes.    London  and  New  York,  1904. 
THORPE,  George  C. : 

Pure  Logistics.    Kansas  City,  1917. 
VREELAND,  Hamilton: 

Hugo  Grotius.    New  York,  1917. 
WARD,  C.  Osborne: 

The  Ancient  Lowly:  A  History  of  Ancient  Working 

People.    Two  volumes.    Washington,  1900. 
WEBSTER,  Hutton: 

Primitive  Secret  Societies,  a  Study  in  Early  Politics 
and  Religion.    New  York,  1908. 


388      THE  STATE  AND  GOVERNMENT 

Rest  Days,  a  Study  in  Early  Law  and  Morality.    New 

York,  1913. 
WILSON,  George  Graf  ton : 

Handbook  of  International  Law.     St.  Paul,  1910. 
WILSON  and  TUCKER,  George  Fox : 

International  Law,  fifth  ed.    Boston,  1910. 
WOOLBRIDGE,  Frederick  J.  E. : 

The  Philosophy  of  Hobbes.    Minneapolis,  1903. 


V.     MAGAZINES  AND  YEAR  BOOKS 

The  chief  American  magazines  useful  for  reference 
purposes  in  governmental  matters  are: 


Political  Science  Quarterly,  edited  by  the  faculty  of  Co- 
lumbia University  for  the  Academy  of  Political  Science; 
also  Proceedings  of  the  Academy  from  1910. 

American  Political  Science  Review,  published  quarterly 
by  the  American  Political  Science  Association ;  also  ten  vol- 
umes of  the  Proceedings  of  the  Association  (1905-14). 

Annals  of  the  American  Academy  of  Political  and  Social 
Science,  issued  bi-monthly. 

American  Journal  of  International  Law,  issued  quarterly 
by  the  American  Society  of  International  Law. 

The  American  City,  monthly. 

National  Municipal  Review,  monthly. 

American  Historical  Review,  issued  quarterly.  Also  An- 
nual Reports  of  the  American  Historical  Association. 

Yale  Review,  edited  by  the  professors  in  political  science 
and  history  at  Yale  University  and  issued  quarterly. 

British  magazines  of  a  somewhat  similar  nature  useful 
for  reference  purposes  are :  Contemporary  Review,  Dub- 
lin Review,  Edinburgh  Review,  Fortnightly  Review, 
Quarterly  Review,  The  Round  Table  (a  quarterly  review 
of  the  politics  of  the  British  commonwealth). 


BIBLIOGRAPHY  389 

The  following  works  also  will  be  found  useful  for  ref- 
erence purposes : 

Cyclopedia  of  Political  Science,  edited  by  John  Joseph 
Lalor.  Three  volumes.  1882-4. 

Cyclopedia  of  American  Government,  edited  by  Andrew 
C.  McLaughlin  and  Albert  Bushnell  Hart.  Three  volumes. 
1914. 

Dictionary  of  Political  Economy,  edited  by  R.  H.  Inglis 
Palgrave.  Three  volumes.  1894-9. 

American  Year  Book.    A  record  of  events  and  progress. 

Statesman's  Year  Book  (London).  A  statistical  and  his- 
torical annual  of  the  states  of  the  world. 

The  Annual  Register  (London).  A  review  of  public 
events  at  home  and  abroad. 

The  New  International  Year  Book  (New  York).  A  com- 
pendium of  the  world's  progress. 

The  Canadian  Annual  Review  of  Public  Affairs  (To- 
ronto). 

For  articles  in  general  periodical  literature  the  "Read- 
ers' Guide  to  Periodical  Literature"  is  the  standard 
authority. 


INDEX 


"Absolute  state/1   119-120. 
Achievements,   political,    346- 

53,  ,364- 

Actions,  civil,  82. 
Activities,     governmental,     9, 

108,  158,  187,  227,  274, 

338- 
Administration,  8,  37,  100,  151, 

182,  189,  265,  314. 
departments  of,  197-8,  201- 

3- 

differentiation  of,  197-201. 
districts  of,  206-9,  227. 
separation  of,  165,  169,  177. 
See  also  Civil  service,  Of- 
fice, Responsibility. 
Administrative  courts,  216-8. 
functions,  159,  161,  162,  163. 
law,  218,  279. 
organization,    197-213 

(Chapter  XIII). 
system,    French,    151,    165, 
169,  177,  202,  207,  217- 
9,  280. 

Admiralty,  227,  277. 
Adoption,  101. 

Adult  suffrage.    See  Suffrage. 
Agreements,    international,   4, 

34,  7i>  75,  152. 
Agriculture,   14,   17,  24,  31-3, 

84,  86,  104-7,  249,  257, 

286,  312. 
Alaska,  106. 
Alexander,  38,  44. 
Aliens,  32,  156,  223,  287,  303, 

357,  363. 


Allegiance,  38,  47,   304,   310, 

316,  354- 

Allied  Powers,  75,  152,  212. 

Amalgamation  of  races,  73,  74, 
76,  254. 

Amendments.  See  Constitu- 
tion, Legal  Sovereign. 

America,  Continent  of,  44,  71, 

157. 

See  also  Latin  States  of. 
American  Colonies,  134. 
commonwealths.    See  Com- 
monwealths. 

party  system,  247,  329-333. 

Revolution,  125,  136,  139. 

Anarchic,  Anarchism,  2,  355, 

360. 

Ancestor  worship,  30,  32,  86, 

89. 

Appeals,  219. 

Appointment,   power   of,   166, 

171,  172,  200,  205. 
Arbitration,  4,  66,  80,  264,  351, 

363. 
Boards  of,  71,  82,  83. 

Areas  of  administration.  See 
Administration,  Dis- 
tricts. 

Aristocratic,  Aristocracy,  148, 

172,  176,  354. 
Aristotle,  6,  7,  126,  148,  164, 

282,  341. 
Armistice,  196. 
Army  and  navy,  67-70,  162, 

166,  182,  214,  215,  230, 

317,  319,  342. 


39* 


392 


INDEX 


Army  and  navy,  rules  regulat- 
ing the,  70,  219,  279. 
See  also  Sea  Power. 

Arts,  the  fine,  26,  91. 

Asia  Minor,  346,  347. 

Assemblies,  popular,  120. 

Assessment  of  taxes,  66. 

Assimilation  of  civilizations, 
7S,  74,  76,  153,  254. 

Associations,  12,  46. 

Athens,  54,  72,  287,  293,  357. 

Attainder,  bill  of,  220,  250. 

Australasia,  83,  105,  349,  365. 

Australia,  137,  155,  350. 

Australian  ballot,  294. 

Austria-Hungary,  188. 

Authority,  2,  27,  28,  30,  48,  71, 
77,  92,  187,  196,  273. 

Autocracy,  49,  126,  149,  179, 
189,  234,  249,  266,  308. 

Autocratic  ruler,  51,  119,  121, 
126,  133,  148,  185,  186, 
246. 

Autocratic  type  of  cabinet, 
189-92. 

Autonomy,  38,  45,  104,  155. 
local,  34,  151-2,  208-9. 


Baldwin,  S.  E'.,  255. 

Ballot,   293-5,   297,   323,   324, 

328,  333,  334-6,  351,  365. 
short,  294,  335. 
Band,  war.    See  War. 
Bank,  109,  312. 
Bartering,  17,  107. 
Belgium,  334,  335. 
Bellamy,   Edward,  360. 
Bentham,  Jeremy,  262. 
Bible,  referred  to,  78,  90,  in, 

199,  229,  256. 
Bicameral  system,  237-8. 
Bill  of  attainder,  220,  250. 


Bills,  drafting  of,  262. 
initiation  of,  240,  242,  295- 

302. 

money,  241. 
of  rights,  51,  138,  143,  168, 

313. 

private,  240,  243. 
public,  240,  243,  244-6. 
Bismarck,  Prince,  190,  210. 
Blackstone's       Commentaries, 

167,  253. 

Blood  revenge,  77,  79. 
Bodin,  54. 
Body   politic,   28,   46,   47,   49, 

53,  151,  267. 

national,  47,  48,  131,  152. 
Bolshevism,  126,  181,  205. 
Borgeaud,  Charles,  138,  146. 
"Bossism"  in  politics,  294,  323- 

4.    See  also  Corruption. 
Bourgeoisie,  176,  178,  357. 
Breaches  of  the  peace,  78,  318. 

See  also  Peace. 
Bryce,  James,  235,  283. 
Budget,  65,  352. 
Bureaucracy,    159,    177,    186, 

187,  203,  217.    See  also 

Administration. 
Bureaus,  legislative  reference, 

262. 


Cabinet,  168,  185,  189-196,  201. 

American  type,  194. 

autocratic  type,  189-92,  195. 

British  type,  160,  192-4,  195, 

244,  246,  249,  296. 
Caesar,  22,  72,  97,  120. 
Caine,  Hall,  235. 
California,  102,  156,  172,  301. 
Camouflage,  50. 
Canada,  83,  105,  155. 
Cannibalism,  29,  30. 


INDEX 


393 


Canon  law,  275,  277. 

Canton,  Swiss,  208. 

Carnegie  Report,  263. 

Castes,  223. 

Caucus,  247,  333. 

Centralization,  Centralized, 
37,  38,  147,  151,  208, 
210,  217.  See  also  Au- 
tocracy. 

Central  Powers,  75,  152. 

Champernowne,  H.,  332. 

Charta,  Magna,  131,  257,  312. 

Charters,  136. 

Chartist  movement,  115. 

Checks  and  balances,  123,  167- 

9- 
China,  9,  19,  49,  50,  101,  105, 

139,  212,  346. 

Christianity,  88,  122,  358,  359. 
Church,  61,  123,  185,  236,  277, 

325. 
and  State,  61,  88,  89-95,  198, 

226,277,351. 
functions  of,  61,  88,  90-95, 

i98. 

Roman  Catholic,  347. 
Citizens,  47,  51,  102,  274,  303, 

340,  354,  357- 
classes  of,  304. 
duties  of,  47,  310,  314, 
naturalized,  304. 
rights  of.    See  Rights. 
Who  are  ?,  47,  287. 
Citizenship,  287,  303-310,  363. 

inequalities  in,  304-6. 
City,  35-39,  33<5,  364-    See  also 

Urban. 

of  refuge,  81. 
State,   1 8,   37,   38,   44,   235, 

259,  282,  288. 
Civil   disputes,    regulation   of, 

82,  225,  276. 
law,  77,  274,  276. 


Civil  rights.    See  Rights, 
service,   161,   174,  204,  280, 

364.    See  also  Office, 
service  rules,  203,  350. 
Civilization.    See  11-23  (Chap- 
ter II),  366. 

its  earlier  stages,  14-16.  See 
also  Industrial,  Patriar- 
chal,   Primitive,    West- 
ern. 
Clan,  27,  32-3,  44,  84,  87,  101, 

112. 

Class  distinctions,  63,  224,  271, 

286,  290,  306. 
interests,  200,  256. 

Classes,  privileged,  5,  22-3,  52, 
69,  126,  176,  180,  204, 
322,  356,  358,  365- 

Clergy.    See  Priesthood. 

Closure,  242. 

Codes  of  law,  273. 

Codification,  37,  256,  284. 

Coinage,  65,  108. 

College,  electoral,  206. 

Colonization,  44,  97,  104-6, 
202,  345,  347. 

Combat,  judicial,  81. 

Commands,  I,  5,  35,  48,  161, 
162,  260,  267,  274, 
278. 

Commentators,  influence  of, 
255,  274. 

Commerce,        Commercialism, 

18,  23,  24,  35-8,  45,  71, 
107-111,   236,  249,  257, 

287,  325,  347,  356,  357, 
358. 

Commerce  and  manufactures, 

19,  25,    93.      See    also 
Manufactures. 

Commissions,    16*0,    219,    241, 

262. 
constitutional,  142. 


394 


INDEX 


Committees      of      lawmaking 

bodies,  1 60,  243,  244. 
Common   law,   225,  226,   253, 

257,  274,  275,  284. 
Commons,  English  House  of, 
134,  193,  236,  239,  246, 
248,  250,  259,  325. 
Commonwealths,  152,  154,  208, 

240,  241. 

Commonwealths,    the    Ameri- 
can,   65,    132-6,    140-6, 
202,  209,  240,  275,  285, 
336. 
amendment  of  constitutions 

of,  142. 
constitutions  of,  140-6,  283, 

300. 
length    of   constitutions   of, 

144. 

prohibitions  on,  140,  141. 
related  to  the  Federal  Gov- 
ernment, 156-8. 
Communal  ownership,  100. 
Community,  28,  46,  53,  99-101, 

154,  272,  273. 
village.    See  Village. 
Composition     of     lawmaking 

bodies,  129,  238-40. 
Compurgation,  81. 
Conciliar  theory,  123. 
Concordats,  93. 
Confederation,  34,  44,  87,  134, 

136,  152,  153. 
contrasted   with    federation, 

152-5- 
Confiscation   of  property,   65, 

230,  272. 
Confucius,  6. 
Congress  of  the  United  States, 

195,  196,  296.    See  also 

United  States. 

Congresses,  internajipnal,  72. 
Connecticut,  142. 


Conquest,  effects  of,  72,  102, 

254. 

Conscription,  62,  274. 
Conservatism,  337. 
Constituent    body,     133,    135, 

282. 

Constitution,  48,  49,  127,  128- 
146  (Chapter  IX),  157, 
200,  281-3. 

amendments  to,  130,  141-3. 
check  on  despotism  in,  59. 
check  on  government,  49, 

50-2,  126,  138. 
definition  of,  128. 
every  state  has,  128. 
how  made,  145. 
importance  of,  136-9. 
interpretation      o  f .        See 

Court,  Supreme, 
the  unwritten,  283,  308,  332. 
the  written,  125,  135-46,  282, 

308,  349- 

Constitutions  of  the  Common- 
wealths. See  Common- 
wealths. 

Constitutional  Convention, 
132,  135,  142,  145,  160, 

170,  252,  282,  297. 

as  agent  of  the  electorate, 

135,  142,  146. 
powers  of,  145. 
Constitutional   forms   of  gov- 
ernment,  51,    128,    149, 
246,  266. 
Consular  service,  70,  in,  227, 

364- 
Contempt,    power    to    punish 

for,  83,  215,  242. 
Contract,  the  social,  121,  136, 

171,  288,  290,  360,  361. 

Control,  Popular,  2,  150. 

Convention.       See     Constitu- 
tional. 


INDEX 


395 


Convention,  party,  327,  330. 
Coolies,  105. 
Cooperation,  n,  12. 
Corporation,  theory  of  the,  123. 
Corporations,  64,  65,  304. 
Corruption  in  government,  9, 

203,  222,  261,  289,  316, 

319,  322,  323,  332,  333. 
Council  of  church,  124. 
Council  of  monarch,  147,  160, 

163,  168,  175-8,  189,  238, 

258. 

County,  207,  239. 
Court,     American     Supreme, 

167,  170,  173,  266. 
Courts,  199. 

administrative,  216-8. 
American       administrative, 

219. 

-martial,  215. 
systems  of,  224-7. 
Crete,  18. 
Crime,  12,  224,  273. 

social  regulation  of,  77-83. 
Criminal    law,    82,    218,    225, 

270,  275,  284,  364. 
Criminals,    32,    68,    216,    232, 

263. 
Cromwell,  122,  125,  138,  199, 

224. 

Crusades,  19,  38. 
Custom,   Customs,  3,   12,   107, 

122,  1 86. 
Customs   as   law,   8,   48,   100. 

137,  200,  214,  253,  268, 

274,  277. 

Customs,  social,  33,  268. 
Czar.    See  Tsar. 


"Dead  hand,"  130. 
Decentralization,  151,234.  See 
also  Autonomy. 


Decisions,   judicial,   161,   223, 

257,  274,  275,  284. 
Declaration  of  Independence, 

131,  134,  306,  313. 
Declaration     of     Rights 

(France),  217,  313. 
Decree,    161,    163,    258,    275, 

279. 

"Degree,  the  third,"  231. 
Definitions  and  Explanations, 

46-57  (Chapter  IV). 
Deliberative      function,      159, 

160,  162,  163,  177. 
Democracies,  Democracy,  103, 

129,  130,  143,  149,  150, 

186,  224,  239,  295,  324, 

342. 
based   on   intelligence,   324, 

361. 
conservative,  178,  181,  288, 

356,  357,  36o. 
direct,  151,  203,  295,  298. 
growth  of,  136,  201,  354-367 

(Chapter  XXII). 
historic  forms  of,  355-60. 
ideals  of,  57,  306,  307,  316, 

355,  362. 

indirect,  151,  203. 
international  aspects  of,  362. 
newer,  349-53- 
political,  308. 
primitive,  tribal,  286,  356. 
principles  of,  361. 
radical,  49,  302,  356,  358-60. 
representative,      295,      297, 

298. 

social  aspects  of,  364. 
trend  of,  365-7. 
Department,      administrative, 

197,  201-3. 

governmental,  37,  159,  189. 
judicial,    123,    201,    214-233 

(Chapter  XIV),  314, 


396 


INDEX 


Department,   lawmaking,    123, 
132,    142,   200,   234-253 
(Chapter  XV). 
separation  of.    See  Separa- 
tion. 

Despotism,  56,  126,  149,  175, 
176,  308,  322.  See  also 
Autocracy. 

Deter  from  crime,  81,  230. 
Differentiation  of  powers,  163, 
169-174,  1 80.    See  also 
Separation  of. 
summary  of,  174. 
administration,      161,      165, 

169,  177. 

electorate,  171,  201. 
judiciary,  170,  178,  199,  221- 

3- 
the    lawmaking    body,    169, 

178,  200. 

Diplomacy,  4,  8,  27,  44,  66, 
70,  73,  182,  202,  342, 

363. 
Discretionary     powers,     204, 

216. 

Disputes.  See  Civil. 
Discussion,  148,  322. 
Districts  of  Administration, 

206-9,  227- 
Divine  right,  90,  175,  179,  184, 

185,  190,  249,  260,  272. 
Divorce,  88,  227. 
Domestic  peace,  3,  4,   5,   55, 

58,      317.       See     also 

Peace,  internal. 
Domestication  of  animals,  14, 

18,  29,  31,  84. 
Domicile,  47. 
Dominus,  87. 
Drafting  of  bills,  272. 
Duma,  Russian,  180. 
Dunning,  W.  A.,  8,  54. 
Duties.    See  Obligations. 


Ecclesiastical.  See  Canon, 
Church,  Priesthood,  Re- 
ligious. 

Economic  agencies,  3,  264. 
conditions  and  development. 
See     24-57     (Chapters 
III,  IV),  361. 
opportunity,  21,  311,  345. 
party-issues,  336. 
regulation,    53,    60,    96-118 

(Chapter  VII). 
Education,  11,  13,  55,  88,  92, 

312,  316,  320. 
democracy  and,  324,  361. 
Elders,  body  of,  3,  27,  67,  120, 
159,  163,  175,  183,  197, 
223,  286,  356. 
village,  32,  67,  87,  101,  238. 
Elections,    322,    323,    326-31, 
333,     334-      See     also 
Ballot,   Primary. 
Electoral    college,    American, 

330. 

Electorate,  52,   124,   135,   138, 
146,  165,  170,  173,  175, 
176,   200,   241,   285-302 
(Chapter  XVIII),  315, 
321,  323,  327,  334,  366. 
defined,  47,  287. 
differentiation  of,  197-201. 
governmental    agency,    171, 

201,  291-2. 
powers   of,    132,    142,    291, 

298. 

ratio  of,  150,  289,  290. 
restrictions   on   powers   of, 

292,  298. 
Emancipation       proclamation, 

141. 
Eminent  domain,  59,  65,  103, 

319. 

Empire,  Empires,  18,  34,  45, 
156,  188,  346. 


INDEX 


397 


Empire,  Holy  Roman,  38,  347. 
England,  English,   19,  45,  76, 
122,  123,  125,  138,  145, 
151,  152,  199,  208,  347. 
See  also  Great  Britain- 
cabinet.    See  Cabinet, 
parliament,   See  Parliament, 
party  system.    See  Parties. 
Environment,  21,  263,  286. 
Equality  in  law,  223,  224,  304. 
of  man,  290,  355,  356,  359, 

360. 

of  states,  50. 
Equity  Courts,  225. 

law,  9,  226,  261,  275. 
Ethical   principles,   9,   12,   49, 
122,  278,  309,  323,  339, 
361.    See  also  Ideals. 
Etiquette,  I,  186. 
Eugenics,  263. 

Exchange,  medium  of,  36,  108. 
Executive  department,  2,  123, 

173,  174,  175-81,  182-196 
(Chapter     XII),     248, 
249. 

functions  of  the,   159,   160, 

161,  162,  182-3. 
judicial,  powers  of  the,  162, 

174,  199,  214-18. 
lawmaking   powers   of   the, 

174,  258,  279. 
powers  of  the,  166,  179,  182, 

201,  241. 

Expansion,  6,  18-20,  345. 
Expatriation,    310.      See    also 

Naturalization. 
Exploitation,    18,    19,   45,   99, 

104,  366. 


Factions,    political,    321,    325, 

328. 
Familia,  85,  86,  87. 


Family,  53,  83-89. 
metronymic,  15,  26,  83. 
modern,  15,  86,  87,  88. 
relations  with  the  state,  60, 

87,  86-8. 

patronymic       (patriarchal), 
15,  32,  77,  84,  86,  in. 
totemistic,  84,  85. 
Farming  of  taxes,  63,  66. 
Federation,  45,  149,  151-8,  208, 

^  227,  238,  240.  ' 
British  colonial  federations, 

155. 

Contrasted  with  confedera- 
tion, 152,  153-5. 
dual  in  form,  45,  132,  152, 

154,  157,  281. 
importance  of,  153. 
origin  of,  153,  155. 
utility  of,  156. 
world,  74-6. 

See  also  League  of  Nations. 
Federations,  chief,  155,  157. 
Feud,  79. 
Feudalism,   37,   38,    195,   210, 

238,  287. 
Fiction,  the  legal,  50,  87,  174, 

254,  255,  257,  260. 
Fines,  a  system  of,  77,  79-81, 

230,  232. 

Fisheries,  importance  of,  106. 
Folkways,  12. 

Food  supplies,  importance  of, 
14,  17,  20,  29,  30-2,  39, 
96,  97,  106. 
Force,   rule  of,   I,   5,  28,  96, 

184,  234. 

Forty-shilling  franchise,  288. 
France,  21,  38,  39,  94,  188,  208, 

238,  244,  248,  347. 
administrative     system     of, 
151,  165,  169,  177,  202, 
207,  217-9,  280. 


398 


INDEX 


France,    constitution   of,    132, 

139,  US- 
Declaration  of  Rights,  217, 

313. 

ideals  of,  348,  361. 
party    system,     193,     327-9, 

331,  335- 

separation  of  powers  in,  179. 
Frazier,  J.  G.,  89. 
Freedom  of   speech,   52,   242, 

273,  309,  312,  313,  3*5- 
Freedmen,  113,  223. 
Freemen,    113,  223,  224,  238, 

248,  286,  357. 

Functions   of   government,   4, 
55>   60,    58-118    (Chap- 
ters V-VII),  176,  211. 
classification  of,  158-63. 
five  classes  of,  defined,  159. 
Fundamental    law,    121,    201, 
315,  366.    See  also  Con- 
stitution. 
Constitution  as,  137,  297. 


Gardiner,  S.  R.,  125,  272. 

General    welfare.     See   Wel- 
fare. 

Genro,   190,   191,  210. 

Gens,  Gentes,  83-7. 

George,  Lloyd,  326,  327. 

German,  Germany,  7,  39,  88, 
93,   120,   188,  208,  256, 
348. 
Republic,  72,  145,  188,  335. 

Golden  age,  2,  341. 

"Golden    Bull"    of    Hungary, 
312. 

Gooch,  G.  B.,  138. 

Goodnow,  Frank  J.,  217,  280. 

Government,  I,  8,  126,  338,  354. 
classifications     of,     147-163 
(Chapter  X). 


Government,     definitions     of* 

48,  119,  172-4. 
departments  of,  37,  159,  189. 
development  of,  24-43 

(Chapter  III), 
distinguished  from  state,  I- 

10  (Chapter  I),  49,  50-2, 

119-127       (Chapter 

VIII). 
functions  of,  4,  55,  60,  58- 

118   (Chapters  V-VII), 

176,  211. 

industrial  type,  39-43.  45- 
limitations  on,  49,  50-53,  59, 

269. 

local,  47,  150,  152,  202. 
organization    of,     52,     128, 

119-367    (Part  II). 
patriarchal,  28-35,  48. 
primitive,  2,  26-8,  43. 
social,  I,  119. 
spirit  of,  149,  151,  153. 
urban  type  of,  35-9,  45- 
Great    Britain,    38,    39,    115, 

119,  149,  155,  236,  324- 

7- 
cabinet  in,   160,   192-4,   195, 

244,  246,  249,  296. 
kingship  in,    125,   187,   188, 

192. 

legal  sovereign  in,  133. 
parties   in,   192,  325-7,  331, 

335- 

policy  of,  9,  195,  343. 
See    also    England,    Parlia- 
ment. 
Greece,  Greek,  18,  19,  37,  38, 

153,  346. 
classification  of  government 

in,  148,  151. 
See  also  Homeric. 
Grotius,    Hugo,    50,    71,   278, 

342. 


INDEX 


399 


Groups,  social,  2,  u. 
Guaranties,  constitutional,  130. 
Guild  socialism,  49,  116,  130. 
Guilds,  78,  112. 
Gummere,  Francis  B.,  61,  121. 
Gumplowicz,  Ludwig,  73. 


Habeas  corpus,  59. 
Hammurabi,  code  of,  256. 
Haiti,  49,  50. 
Hanse  cities,  37,  347. 
Happiness,  the  pursuit  of,  306, 

312,  320. 

Hare  system,  334-6. 
Hart,  A.  B.,  153. 
Haskins,  C.  H.,  222. 
Hay,  John,  9. 
Headship  of  the  state,  32,  33, 

.  37,  187. 
Hearings,    public,    241,    244, 

297. 

Hebraic,  34,  97,  293. 
Hejas,  kingdom  of,  187. 
Heralds,  70. 
Hereditary,  184. 
Hierarchy,  198,  347. 
Hobbes,  Thomas,  5,  54,  121. 
Holland,  45. 

Holy  Roman  Empire,  38,  347. 
Homeric,  34,  120,  293. 
d'Hondt  system,  334-6. 
Horde,  n,  26,  27,  28,  29,  30, 

44,  67,  84,  120,  153,  175, 

223,  234,  308,  356. 
Humanitarian,  349,  358,   361, 

364- 

Hunting    stage,    3,    24.      See 
also  Horde,  Primitive. 


Ideals    of    democracy.      See 
Democracy. 


Ignorance  of  the  law,  82,  271. 
Immigration,  104,  105. 
Impeachment,    168,    174,    188, 

220,  250. 

Inderwick,  F.  A.,  222,  226. 
India,  76,   101,   105,   185,   187, 

223,  346. 
Individualism,  9,  56,  115,  350, 

355,  358. 

Industrial  civilization,  24,  39- 
42,  148. 

Industries,  the  larger,  112. 

Initiation  of  bills,  240,  242, 
295-302. 

Initiative,  178.  See  also  Ref- 
erendum. 

Initiative  and  referendum, 
142,  171,  172,  201,  237, 
252,  292,  295,  296-302, 

334- 

defined,  298. 

in  Switzerland,  132,  298-300. 

in  the  United  States,  300-2. 
Injunction,  83,  215. 
Institutions,    social,    3,    11-13, 

30,  35,  48,  50,  53,  55, 
79,  89,  92,  148,  198,  229, 
268. 

Instruction,  right  of,  132,  143, 
172,  205,  251,  297,  301, 
302. 
Instrument     of     government, 

125,  138,  297. 

Interchurch  Commission,  re- 
port of,  264. 

Interests,  48,  52,  55,  105,  129, 
153,  167,  180,  234,  236, 
286. 

corporate,  239. 
dominant,  67,  129,  323. 
struggle  of,  250,  256,  287. 
unity  of,  38,  44,  46,  209,  317, 
319. 


400 


INDEX 


Internal     peace,     60,     77-95 

(Chapter  VI),  215,  276. 

See    also    Domestic 

peace. 
International  law,  8,  27,  44,  47, 

49,    71,    277,    283,    284, 

363- 
International  policies,  9,  74-6, 

179,  202,  251,  339,  348. 
Interpellation,  193,  329. 
Interpretation    of    laws,    175* 

218,  219,  254,  257,  260, 

266,  277. 
of  the  constitution,  167,  170, 

173.  180,  266. 
Inventions,  112. 
Ireland,  326. 
Ireland,  Alleyne,  107. 
Isolation,  policy  of,  9. 
Italy,  141,  347- 
Ito,  Count,  190,  210. 


Jameson,  John  A.,  146. 

Janus,  temple  of,  4. 

Japan,  105,  156,  178,  190,  221, 

256,  291,  348,  362. 
administrative     aspects     of, 

227. 
bureaucracy  of,  190-2,   195, 

210-13. 

cabinet  of,  190-92,  195. 
constitution    of,    132,    139, 

145,  150,  190,  210. 
emperor   of,    132,   145,   187, 

190,  191,  210. 

Jefferson,  Thomas,  342,  348. 
Jellinck,  Georg,  313. 
Jenks,  Edward,  256,  271. 
Judicial  combat,  231. 

department,  123,  201,  214- 
233  (Chapter  XIV), 
314. 


Judicial   development   of  the, 

221. 
differentiation  of,   170,  178, 

199,  221-3. 
functions  of  the,   160,   161, 

162,  163,  214. 
powers  of  the  executive.  See 

Executive. 

powers  of  the  lawmaking 
body,  162,  174,  216,  220, 
252. 

powers  of  the,  167. 
Judiciary,  independence  of  the, 

176,  222,  266. 
Jurisprudence,  9,  12. 
Jurists,  128,  255,  274. 
Jury,  222,  228,  292. 
grand,  228,  292. 
service,  171,  315,  318. 
Justice,  abstract  principles  of, 
165,  205,  217,  218,  254, 
342. 
Justinian,  226,  256,  274,  284. 


Kerensky,  181. 

Kimball,  Everett,  220. 

King,  131,  175-7,  184-7,  205, 
236,  246,  248,  258.  See 
also  Great  Britain,  Ja- 
pan. 

limited  by  constitution,  1 86. 
council  of  the.    See  Cabinet/ 
Council. 

Kingship,  15,  32,  77,  81,  84, 
88,  102. 


Labor,  113-6,  336,  359,  366. 

forced,  59,  63,  230,  232. 

organizations   of,   326,   364. 

regulation  of,  113,  351. 
Laboratories,  political,  366. 


INDEX 


401 


Laissez-faire,  6it  115,  288. 
Land,  15,  63,  96-106,  345. 
Language,  11,26. 
Latin  America,  19,  105,  139, 

146,  155,  194,  265,  291, 

313,  348. 
Law,    9,    22,    34,    205,    253, 

314. 

administrative,  218,  279. 

admiralty,  227,  277. 

arising  from  custom.     See 
Custom. 

as  command,  48,  269,  279. 
See  also  Commands. 

canon,  275,  277. 

classification     of,     267-285 
(Chapter  XVII). 

codification  of.    See  Codifi- 
cation. 

defined,  267,  270. 

divine,  253,  257,  258. 

equity,  9,  226,  261,  275. 

friction  in,  270,  273. 

fundamental,   121,  201,  315, 
366. 

how  changes  are  made  in, 
253-261. 

international.     See  Interna- 
tional. 

natural,  71,  278. 

of  the   land,   72,    199,   220, 
221,  251,  273,  278. 

public,  218,  219,  283. 

Roman.    See  Roman. 

simplification  of,  199,  351. 

social,  i,  2. 
Laws,   multiplication  of,   170, 

261. 

Lawmaking,  253-266  (Chapter 
XVI),  260. 

department.      See    Legisla- 
tive. 

importance  of,  236-8,  252. 


Lawmaking,    judicial    powers 

of.    See  Legislative. 
Lea,  H.  C,  81,  231. 
Leadership,  148,  183. 
League  of  Nations,  43,  71,  75, 

98,  114,  152,  337,  348. 
Legal  fiction,  50,  87,  174,  254, 

255,  257,  260. 
Legal     sovereign,     128-146 

(Chapter    IX),    150-1, 

173- 

defined,  127,  130,  184. 
relations  with  the  electorate 

of,  132,  178.     See  also 

Electorate. 

revolutionary  in  origin,  134. 
Legal  sovereignty,  location  of, 

I3I-4. 

Legislation.    See  Lawmaking. 
class,  271. 
legality  of,  265. 
modern,  200,  259-65. 
through  the  executive.    See 

Executive. 
Legislation,    scientific,    261-5, 

364- 

basis  for,  262-4. 
illustrations  of,  264. 
Legislative    department,    123, 

132,    142,   200,   234-252 

(Chapter  XV). 
composition  of,  129,  238-40. 
decline  of,  144,  334. 
differentiation  of,  169,  178, 

200. 

functions  of,  159,  162,  251. 
judicial  powers  of,  162,  174, 

216,  220,  252. 
powers  of,  166,  252. 
privileges  of,  241-3. 
Legislative  ordinances,  280. 
policy,  160,  167,  244,  246-8, 

296. 


402 


INDEX 


Lenine,  188. 

Levellers,  125,  199,  360. 

Lex  talionis,  79,  229,  232. 

Liberty,  5,  50,  120,  123,  306, 
310,  312. 

Life,  55,  306,  311,  312. 

Life  and  property,  3,  7,  46,  47, 
48,  51,  53,  55,  58,  77, 
in,  303,  310,  311,  314, 

339- 
Limitations  on  government,  49, 

5<>-3,  59,  269- 

Lincoln,  President,  252,  316. 
Litigation,  65. 
Local    government,    47,    150, 

152,  202. 

Locke,  John,  54,  121,  306. 
Logistics,  70. 

Lords,  House  of,  132,  236,  325. 
Louisiana,  144. 

Lowell,  A.  Lawrence,  217,  244. 
Lowie,  R.  H.,  89. 
Lynch  law,  79,  231. 


Machiavelli,  308,  323,  332,  339, 
340,  346. 

Machinery,  14,  23,  24,  40. 
governmental,  324,  364. 

Machinofacture,  24.  See  Man- 
ufacture. 

Magistracy,  124-6. 

Magna  Charta,  131,  257,  312. 

Mahan,  Alfred  T.,  69. 

Majority,  rule  of  the,  126. 

Malthusianism,  3,  21,  39,  42, 
84,  1 06. 

Mandataries,  76,  98. 

Mandates,  143. 

Manufactures,  19,  24,  41,  m- 

3,  359,  36i. 
Maritime  law,  277. 
Market,  20,  107. 


Marriage,  55,  88,  265. 
Marsiglio,  123. 
Martial  law,  59,  268,  279. 
Massachusetts,   138,   144,   166, 

301,  313- 
Medium     of     exchange,     36, 

108. 
Mentality,  human,  21-3,  29,  36, 

43- 

Merchant,  law,  277. 
Metals,  14,  17,  19,  25,  41,  in, 

345- 

Metronymic,  15,  26,  83. 
Mexican  constitution  of  1824, 

313. 
Mexico,   19,  94,  98,  149,   155, 

188,  199,  241,  248. 
Militaristic,    3,    16,    210,    212, 

358. 

Military  services,   67-70,  303, 

317,  362. 

Mines,  18,  36,  100,  103,  366. 
Ministerial  powers,  204. 
Ministry.    See  Cabinet. 
Mob  rule,  126,  150. 
Monarchy,  148,  151,  239,  240. 

See  also  Empire, 
oriental,  34. 
rise  of,  200. 
tribal,  34. 
Money,  36,  108-10. 
Monopolies,  65,  103,  112,  202, 

350. 

Monroe  doctrine,  343. 
Montesquieu,    122,    140,    164, 

167,  168,  217. 
Morals,    16,    224.      See    also 

Ethical. 
Mores,  9,  12. 

More's  Utopia,  270,  272,  360. 
Morgan,  Lewis  H.,  34,  120. 
Municipalities,    108,  206,  207, 

238,  300. 


INDEX 


403 


Municipal  law,  278,  284. 
ordinances,  281. 


Nation,  Nations,  6,  47,  48,  55, 

84,  85,  105. 
political     contributions     of, 

346-9. 
Nationality,   principle   of,   38, 

44,  45>  73,  75*  343- 
Nationals,  47,  304,  305. 
National  states,  44,  342.    See 

also  State. 

Naturalization,  357,  363. 
Natural  law,  71,  278. 

rights,  171,  288,  306. 
Navy,    in.     See   also   Army 

and  Navy. 
Neolithic,  I,  14. 
Netherlands,  The,  313. 
New  England,  120,  136,  137. 
New  Zealand,  150,  349-53- 
Nobility.    See  Privileged 

classes. 
Novicow,  Jacques,  341. 


Obligations,  269,  316-9. 
of  citizenship,  47,  310,  314. 

Occupations,  15,  114. 

Ochlocracy,  150,  151,  181. 

Office,  Office-holding,  -holders, 
47,  60,  63,  150,  161,  203- 
5,  216,  218,  314,  318. 

Ogg,  Frederic  A.,  116,  192. 

Oklahoma,  144,  301. 

Oligarchy,  149,  151,  176,  177, 

293- 
Opinion,  public,  2,  27,  52,  67, 

148,  229,  241,  265,  273, 

321,  332,  340, 

Opportunity,  339,  362,  365. 
Ordeal,  81,  231, 


Ordinance,  183,  258,  259,  261, 

279-81. 

Oregon,  172,  301. 
Organization    of    government, 

52,    128,    119-367    (Part 

II). 

political,  37,  46-8. 
Orient,  Oriental,  68,  102,  105, 

1 06,     256.       See     also 

China,  Japan. 
Osborn,  H.  R,  14,  104. 
Outlawry,  78. 
Oversight  power,  161,  175,  183, 

197,  258. 
Ownership,  individual,  99-103, 

in. 
communal,  100,  103. 


Panaceas,  2. 

Pan-American,  71,  72,  343. 

Papacy,  38,  44,  123.  See  also 
Church,  Roman  Catho- 
lic. 

Paramount    law,    125-7,    J3^ 

17*5. 

Pardoning    power,    168,    223, 

225,  275. 

Parlements,  French,  216. 
Parliament,  British,   125,   132, 

133,  134,  192,  216,  220, 

235,  243,  260,  288,  325. 

See  also  Commons, 

Lords. 
Parliamentary  system,  45,  124, 

126,  132. 
Parties,   political,   9,   52,   205, 

237,    321-337    (Chapter 

XX),  349. 

American,  245,  247,  329-33. 
as   agencies   of   democracy, 

321. 
British,  192,  325-7,  331,  335. 


404 


INDEX 


British    conventibns    of,    327, 

330. 

development  of,  322. 
French,  193,  327-9,  331,  335. 
issues  of,  336. 
platforms  of,  326,  327,  328, 

330,  336. 

regulation  of,  332. 
rise  of,  324. 
Patents,  112,  113,  265. 
Pater,  Patria  potestas,  87. 
Patriarchal  civilization,  22,  24, 

26,  28-35,  175.  l84,  187, 

204,  253,  286,  308,  356. 

See  also  Family. 
Patronymic.    See  Family. 
Peace,  Peaceful,  2,  3,  16,  44, 

66,   199,  278,  341.     See 

also  Domestic,  Internal. 
Penal  system,  81,  232. 
Penalties,    legal,    167,    228-33, 

271,  276. 

People,  47,  51,  123-5,  146,  354- 
the     sovereign,      120,     165, 

171. 

Pericles'  oration,  320. 
Personality  of  the  State,  166, 

182. 

Permanency,  27,  28,  33,  34. 
Petitions,   240,   241,   260,   295, 

297,  312. 
Philosophers,     Philosophy,     5, 

92,    94,    275,    278,    282, 

306. 
Philosophy,  political,  8,  10,  43, 

47,  54,  56,  122. 
Phoenicia,  18,  104,  346. 
Physical  factors,  17-20. 
Platform,   326,   327,   328,   330, 

336. 

Plato,  126,  265,  270,  341,  362. 
Poley,  Arthur  P.,  155. 
Police  power,  58,  259,  269,  311. 


Policies,    Policy,    52,   89,    153, 
160,  167,  195,  211,  219, 

320,     321,     338-353- 

(Chapter  XXI). 

basis  for,  344. 

defined,  9,  338. 

domestic,  339,  361,  364. 

growth  of,  342. 

international.  See  Interna- 
tional. 

through  the  electorate,  296- 
302. 

through  the  executive,  166, 

295. 
through  the  legislative,  160, 

167,  244,  246-8,  296. 
Political  parties.    See  Parties, 
right.    See  Rights, 
science,  defined,  6.    See  also 

46-57  (Chapter  IV). 
divisions  of,  7-10. 
theories,  theorists,  8,  10,  43, 

47,  54,  56,  122,  124,  323, 

338. 

Politics,  2,  9. 
dishonesty   in.     See   "Boss 

ism,"  Corruption. 
Polity,  338. 
Polybius,  167. 
Population,  20-2,  345.  See  also 

Malthusian. 
Postal,  153,  265,  312. 
Powell,  T.  R.,  220. 
Power,     Powers,    Appointive. 

See  Appointment, 
executive.     See  Executive, 
legislative.    See  Legislative, 
of  sovereignty.    See  Sover- 
eign. 

over  the  purse,  211,  251,  320. 
separation  of.     See  Differ- 
entiation, Separation, 
royal,    See  Royal. 


INDEX 


405 


Power,  war.    See  War. 

Preamble  of  English  bill,  296. 

Premiership,  185,  192,  250,  329. 

Preparation  for  war,  3,  4,  341. 

President  of  the  United  States, 
*33>  157,  169,  187,  188, 
194,  195,  196,  246,  248, 
296,  304. 

Prevention,  232,  263. 

Previous  question,  242. 

Priesthood,  90-4,  148,  185,  223. 

Primary,   237,   301,    324,    330, 

333- 

Prime  Minister.  See  Pre- 
miership. 

Primitive  civilization,  2,  II, 
14-16,  22,  26-8. 

Principles,  ethical.  See  Ethi- 
cal. 

political.    See  Political  theo- 
ries. 

Private  law,  214,  218,  219,  283. 

Privileged  classes,  185,  223, 
235,  286. 

Probation,  232,  263,  264,  351. 

Procedure,  rules  of,  216,  219, 
226,  242,  271. 

Prohibitions  of  law,  16,  27, 
262,  274,  276. 

Prohibitory  amendment,  269. 

Proletariat,  21,  115,  150. 

Property,  15,  24,  26,  29,  53, 
55,  88,  103,  199,  270,  276, 

310,  319. 

crimes  against,  81. 
qualifications,  211,  288,  289, 

292,  305- 
taxation  of,  63-5. 

Protagoras,  224. 

Protection  of  life  and  prop- 
erty. .  See  Life  and 
property, 

Protectorate,  105. 


Psychology,  213,  233. 
Public  lands,  63. 
law,  218,  219,  283. 
opinion.    See  Opinion, 
welfare.     See  Welfare. 
Punishment,  2,  78-83,  88,  225, 
228-33,   272,   273.     See 
also  Crime,  Penal,  Pen- 
alties. 

Qualifications     for     suffrage, 

292. 
Quasi-citizens,  304. 

Race   conflict,  4,  73,  75,   105, 

345- 

psychology,  213,  232. 
suicide,  21,  345. 
Races,  dominant,  73,  75. 
Radical,  181,  337. 
Rebellion,   78,   273,   317,   322. 

See  also  Revolution. 
Recall,   right  of,   50,   51,   132, 
171,  172,  206,  221,  292, 
297. 

Red  Cross,  364. 
Referendum,  135,  138,  142,  145, 

246,  297. 
advisory,  301. 
general,  301,  302. 
local,  299,  301. 
obligatory,  299. 
optional,  299. 
See  also  Initiative. 
Regulation,  30,  34,  49,  276. 
through  government,  no. 
Relation  of  church  and  state. 

See  Church. 

Religion,  3,  12,  16,  26,  30,  32, 
54,  89-91,  202,  288,  312, 
3i3,  355,  361,  364-  See. 
also  Church, 


INDEX 


Remedies    of    the    law,    160, 

167. 
Removal,  power  of,  168.    See 

also  Recall. 
Representation,  124,  126,  149, 

150,  234,  235,  237,  286, 

324- 

of  interests,  129,  237. 
proportional     or     minority, 
130,  237,  297,  328,  333-6. 
Republics,   149,  151,  240,  273, 

322. 

Responsibility,  189,  196,  216, 
229,  315.  See  also  Of- 
fice. 

Retaliation,  81,  229. 
Revenge,  229. 

Revisions  of  constitutions,  130, 
139-43.    See  also  Legal 
Sovereign. 
Revolution,     Revolutions,    51, 

122,  127,  250,  361. 
right   of,   52,   59,    120,    131, 

172. 

Rhode  Island,  288. 
Rights,  35,  47,  89,   125,   135, 
303-320       (Chapter 
XIX). 
Bill  or  Bills  of,  51,  138,  143, 

168,  313. 

civil,  33,  303,  307-13,  356. 
ethical,  127,  306,  308. 
family,  309,  311,  313. 
famous  guaranties   of,   125, 

312. 

fundamental,  309. 
legal,  127,  306,  310,  314. 
limitations  on,  305,  314. 
natural,  171,  288,  306. 
of  aliens,  303. 
of  labor,  114-6. 
of  revolution.    See  Revolu- 
tion, 


Rights,     political,     303,     305, 

310,  314-6,  356. 
regulation  of,  313. 
safeguarded,  307,  309,  310, 

315,  324- 
statutory,  305. 
Riots,  4,  215. 
Roman,  Rome,  37,  54,  259,  287, 

346,  358. 

administration,  18,  42,  72. 
family,  95. 

law,  71,  122,  226,  257,  271, 
274,  277,  278,  284,  347. 
popular  sovereignty  in,  130. 
Romero,  Matias,  222. 
Rousseau's     Social     Contract, 
54,   121.   135,   165,  206, 

299- 
Royal  power,  185-7. 

limitations  on,  190. 
Rulers  as  divine.    See  Divine 

Right. 
Russia,  39,  87,  93,   101,   189, 

212. 

fundamental    laws   of,    145, 

179. 
revolution   in,   7,    116,    130, 

181,  188,  291,  318. 


Safety,  group,  4,  5,  12. 
Saint  Augustine,  124. 
Sanctions,  2,  48,  267,  268,  274, 

307,  308. 

Santo  Domingo,  49,  50,  238. 
Scandinavian,  235,  349,  365. 
Science,  Scientific,  56,  92,  105, 

113,  362. 

Scientific  legislation,  261-5. 
Seas,  control  of  the,  9. 
Sea  power,   18,  68,  343,  345, 

348. 
Secession,  152,  154. 


INDEX 


407 


Senate  of  the  United  States, 

194,  247,  248. 
Serfdom,  113,  358. 
Separation   of  administration, 

165,  169,  177. 
of  church  and  state,  93,  198. 

See  also  Church, 
of  governmental  powers, 
122,    164-6,    167-9,   2I7- 
See  also  Differentiation. 
Service,  59,  62,  63,  317. 
civil.    See  Civil, 
secret,  186. 

Slavery,  Slaves,  4,  30,  32,  72, 
84,87,  113,224,230,308, 

356,  357,  358,  365- 
Smith,  Adam,  288. 
Social  contract.    See  Contract, 
development.       See      11-23 

(Chapter  II). 
institutions.    See  I  n  s  t  i  t  u- 

tions. 

progress,  263,  366. 
welfare.    See  Welfare. 
Socialism,    Socialistic,    9,   49, 

103,  116,  181,  329. 
Guild,  49,  116,  130. 
Society,  46,  49. 
Sociology,  6,  92,  262,  338. 
South  Africa,  Union  of,  137, 

155- 

Sovereign,  the  personal,  133. 
Sovereign  powers,  28,  44,  48, 
57,   58-61,  66,  87,   146, 
148,  172,  173,  292. 
Sovereignty  of  the  state,  2,  3, 
33,   38,   48-56,   86,   119, 
124,  130,  153,  154,  338. 
as  supreme  authority,  54,  60, 

269. 

defined,  48. 
development  of,  53, 
divisible,  50, 


Sovereignty  of  the  State,  es- 
sential aspects  of,  58-60. 
in  international  relations,  49. 
legal.    See  Legal  sovereign, 
popular,  120,  165,  171. 
Soviets,  2,  116,  130,  149,  181. 
Speech,  free.    See  Freedom. 
Spencer,  Herbert,  16,  148,  262. 
Sphere  of  influence,  49,  105. 
Sphere  of  interest,  49. 
Standard  of  living,  20. 
State,  2,  48,  56,  79,  273,  281, 
283,  317,  3*8,  339,  342, 
354- 

absolute,  49. 

and  church.    See  Church, 
and  family.    See  Family, 
beginnings  of,  30-4. 
defined,  47,  147. 
distinguished   from   govern- 
ment.   See  Government, 
dominant  over  other  institu- 
tions, 5,  50. 
equality  of,  50. 
national,  38.    See  National, 

Nationality, 
personified,  48. 
social  background  of,  11-23 

(Chapter  II). 

Statesmen,  5,  7,  57,  203,  342. 
Statute,  the,  179,  280,  285. 
Stearns,  John  M.,  80. 
Stoic,   Stoicism,  88,  358,  359, 

360. 

Strike,  83. 
Struggle  for  existence,  3,  n, 

28. 
for  supremacy,  42,  75,  250, 

346. 

of  interests,  250,  256,  287. 
of  races,  4,  73,  75,  105,  345. 
Stubbs,  Bishop,  61,  121,  222. 
Subjects,  47,  48,  59,  307. 


4o8 


INDEX 


Suffrage,    47,    W>    3*5,    333, 

358,  360. 
adult,  148,  172,  289,  290,  291, 

292,  294,  335,  350. 
educational        qualifications 

for,  305,  323,  360. 
in  France,  290. 
in  Great  Britain,  288-90. 
in  United  Stales,  290. 
manhood,  148,  289,  290. 
prerequisites  for,  316. 
women's,  150,  289,  290. 
Sun,  place  in  the,  4,  346. 
Supremacy,  48,  54,   104.     See 

also  Struggle. 
Supreme  Court  of  the  United 

States.    See  Court. 
Suzerainty,  34. 

Switzerland,  97,  120,  132,  151, 
154,  171,  172,  188,  208, 
302,  348,  349,  365. 
Syndicalism,  2,  49,  116,  130. 


Tables  of  Roman  law,  271,  274. 
Tabu,  1 6,  27. 
Tacitus,  120,  293. 
Tariff  duties,  112,  113, 
Taxation,  2,  61-6,  264,  288,  303, 

318. 

control  over,  166,  178,  248, 

251,  319. 
forms  of,  6 1 -6. 
power  of,  58. 

Tenure  of  office,  203,  204,  297. 
See  also  Office. 

The  Hague  tribunal,  71,  153. 

Theories,  political.    See  Politi- 
cal. 

Thomas,  D.  Y.,  221. 

Thorpe,  George  C.,  70. 

Thucydides,  72,  320. 

Tools,  14,  40-2,  in. 


Torture,  81,  230,  272. 
Totemistic,  84,  85,  89. 
Town  or  Township,  175,  207. 
Trade  routes,  18,  19,  35,  107. 

unions,  112,  115. 
Treason,  215,  272. 
Treasury  department  of  the 

United  States,  219. 
Treaties,  Treaty,  66,  70,  in, 

154,  196,  303,  304,  341, 

363- 
Trend    of    democracy.      See 

Democracy. 

Tribal  democracy.  See  Democ- 
racy. 
Tribal,  tribe,  27,  28-30,  32,  44, 

85-7,  loo,  153,  175,  235, 

308,  356. 
Tribute,  5,  234. 
Tropics,  76,  105,  107. 
Tsar,  87,  93,  126,  145,  179-81, 

187,  188. 
Turkey,  198. 
Tyranny,  5,  51,  181,  317. 


Umpire,  the  state  as,  79-83, 113. 
Unicameral,  238,  299. 
Unitary  forms,  151-2. 
United  States  of  America,  19, 
20,65,  94,  H4,  154,  I9I» 

220,  317,  342. 

as  a  federation,  132,  157. 
Cabinet  in,  194,  244,  296. 
committee  system  in,  244, 

247. 
commonwealths     of.       See 

Commonwealths. 
Congress  of.    See  Congress, 
constitution  of,  123,  136,  137, 

139,  141,  143,  145,  157, 

196,  250,  257,  261,  266, 

282,  313. 


INDEX 


409 


United  States  of  America,  Con- 
stitution quoted,  241. 

departments   of   administra- 
tion in,  202. 

legal  sovereign  in,  133,  134. 

legislative  policy  in,  246. 

parties  in.    See  Parties. 

policies  of,  343,  348. 

President  of.  See  President. 

separation  of  powers  in,  165, 
168,  196. 

suffrage  in,  290. 

Supreme    Court    of.      See 

Court. 
Unities,  Unity,  33,  37,  123. 

political,    34,   47,    152,    153, 

154,  267,  317. 
Urban  civilization,  24,  35-9,  87, 

345,  351. 
Uruguay,  Constitution  of,  165, 

169. 

Use,  99-103- 
Utilization  of  natural  power, 

41. 
Utopia,  Utopian,  76,  99,  272, 

281,  341,  349,  360. 

Vengeance,  private,  79,  221. 
Vermont  constitution,  238. 
Veto  power,  133,  168,  180,  245, 

247,  325. 
Village  community,  33,  36,  44, 

85-7,    100-2,    153,    206, 

224,  234,  356. 
Virginia,  144,  313- 
Viva  voce,  293. 
Vocabulary,  political,  323. 
Vote,  Voting,  120,  287,  293-5, 

297. 

War,  2,  64,  76,  214,  314,  341, 
344,  356,  363- 


War,  band,  2-5,  53,  147.    See 

also  Horde. 

power  of  the  state,  58,  66-70, 
77,  147,  166,  183,  259, 

269,  311. 

World,  6,  43,  64,  68,  73,  75, 
107,  152,  188,  196,  264, 
289,  290,  317,  343,  352, 

363. 
Warfare,  30,  62,  162,  212,  267, 

270,  278. 
Waste,  263. 

Washington,  George,  341. 
Water,  navigable,  100,  103. 
Wealth,  234,  239,  356. 
Weapons,  26,  29,  in,  112. 
Weights  and  measures,  109. 
Welfare,  general,  9,  12,  30,  51, 

53,  58,  59,  65,  167,  258, 

267,  273,  292,  320,  321, 

340. 
Western  civilization,  75,   105, 

210. 

Westphalia,  treaty  of,  342. 
Will  of  the  state,  48,  124,  126, 

131- 

Will,  written,  88,  102. 
Willoughby,  W.  W.,  7,  35,  39, 

266. 
Wilson,    Woodrow,    178,   264, 

287. 

Witan,  216. 

Woman's   suffrage,    150,   289, 
290. 

Women,  28,  29,  30,  67,  84,  85, 
223,  305,  308,  317,  356. 

Worker,  the  skilled,  111-3. 

Works,  public,  108. 

World  empire,  39,  42,  44,  93, 

156. 
politics,  43,  73,  97,  210. 

Written  constitution.  See  Con- 
stitution. 

(i) 


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